State v. Kimbrough

[Cite as State v. Kimbrough, 2020-Ohio-3175.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 108172 and 108173
v. :
TERRANCE KIMBROUGH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: June 4, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-628578-A and CR-18-628608-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Yasmine M. Hasan and John Kirkland,
Assistant Prosecuting Attorneys, for appellee.
Timothy F. Sweeney, for appellant.
ANITA LASTER MAYS, J.:
In these consolidated criminal appeals, defendant-appellant
Terrance Kimbrough (“Kimbrough”), who was fifteen years old at the time of the
incidents underlying the charges, challenges the decision of the Cuyahoga County
Common Pleas, Juvenile Court Division, to transfer his cases to the adult criminal
division for adjudication, and the adult court’s imposition of a seven-year prison
sentence. We affirm the trial court’s judgment but remand for nunc pro tunc entries
to document the imposition of concurrent sentences in the two cases.
I. Background and Facts
A. Collinwood Case
A complaint was issued against Kimbrough by the juvenile court in
J.C. No. DL-17119224 (Cuyahoga C.P. No. CR-18-628578) (hereinafter
“Collinwood”) on the following counts arising from the December 11, 2017 robbery
and assault of the pastor, Father John Kumse (“Father Kumse”) of St. Mary’s Parish
in Cleveland’s Collinwood neighborhood:
Count 1 — Aggravated robbery, R.C. 2911.01(A)(1), first-degree-felony;
Count 2 — Felonious assault, R.C. 2903.11(A)(1), a second-degree
felony;
Count 3 — Receiving stolen property, R.C. 2913.51(A), a fourth-degree
felony;
Count 4 — Tampering with evidence, R.C. 2921.12(A)(1), a fourth-
degree felony; and
Count 5 — Tampering with evidence, R.C. 2921.12(A)(1), a fourth-
degree felony.
The first three counts carried one- and three-year firearm specifications and a
weapon forfeiture. Charges were also filed against Kimbrough’s accomplices: J.M.,
M.M., T.P., and A.W.1 Boundover with Kimbrough, J.M. and A.W. subsequently
entered into plea agreements.
B. Detention Center Case
In Cuyahoga C.P. Case No. CR-18-628608 (J.C. No. DL-18100785),
during his detention at the Juvenile Justice Center (“Detention Center”) for the
Collinwood case, Kimbrough was charged with eight additional counts arising from
his alleged involvement in the January 8, 2018 uprising in the incarceration pod
along with D.H., E.B., D.W., T.M.A., and A.R.T. who were not involved in the
Collinwood case:
Count 1 — Escape, R.C. 2921.34(A)(1), a felony of the second-degree;
Counts 2 and 3 — Inciting to violence, in violation of
R.C. 2917.01(A)(1) and (A)(2), felonies of the third-degree;
Counts 4 and 5 — Aggravated riot, in violation of R.C. 2917.02(B)(2)
and (A)(2), felonies of the third and fourth degrees,
respectively;
Count 6 — Vandalism, in violation of R.C. 2909.05 (B)(2), a felony of
the fourth degree;
Count 7 — Possessing criminal tools, in violation of R.C. 2923.24(A), a
felony of the fifth degree; and
Count 8 — Disorderly conduct, in violation of R.C. 2917.11(A)(5), a
misdemeanor of the fourth-degree misdemeanor.
1 A.W. is sometimes referred in the record to by the nickname “A.J.,” but is identified as
A.W. herein for purposes of consistency. T.P. is also erroneously identified in some
portions of the record as “T.T.” but is consistently identified herein as T.P.
C. Probable Cause and Amenability
On December 28, 2017, and January 25, 2018, respectively, pursuant
to Juv.R. 30 and R.C. 2152.10(B), the state moved the juvenile court to relinquish
jurisdiction for adult criminal prosecution in the Collinwood and Detention Center
cases.
The probable cause hearing in the Collinwood case was held on
March 13, 2018, for Kimbrough, J.M., and A.W. The state presented four witnesses
and multiple exhibits. The Detention Center probable cause case was held on
March 16, 2018. The state presented five witnesses and multiple exhibits. No
evidence was presented by the defense in either hearing.
The trial court found probable cause lacking for Count 5, the fourth-
degree felony aggravated rioting charge under R.C. 2917.02(A)(2), in the Detention
Center case. The trial court determined that probable cause existed that Kimbrough
committed or was complicit in the remaining counts and that those acts constituted
criminal offenses if committed by an adult.
The amenability hearings were held on May 4, 2018, after the
mandatory psychological evaluation. Father Kumse, Detective Kevin Warnock
(“Det. Warnock”) of the Cleveland Police Department, Terrance Jenkins
(“Jenkins”), acting Director of Detention Services for the Juvenile Detention Center,
and Sergeant Thomas Bradley of the Sheriff’s Department testified. Videos of the
incidents and photographs of the damages were admitted. No witnesses were
presented by the defense. The trial court concluded that Kimbrough was not
amenable to rehabilitation in the juvenile justice system and relinquished
jurisdiction in both cases.
D. Adult General Criminal Division
On May 14, 2018, the following eight of the total fifteen-count
Collinwood indictments were handed down against Kimbrough:
Count 1 — Attempted murder, alleged violation of R.C. 2903.02(A)/
2923.02, a felony of the first-degree;
Count 2 — Felonious assault in alleged violation of R.C. 2903.11(A)(2),
a felony of the second-degree;
Counts 3 and 4 — Aggravated robbery in alleged violation of
R.C. 2911.01(A)(1) and (A)(3), felonies of the first-degree;
Count 5 — Kidnapping in alleged violation of R.C. 2905.01(B)(2), a
felony of the first-degree;
Count 6 — Receiving stolen property, in violation of R.C. 2913.51(A), a
felony of the fourth-degree;
Count 7 — Carrying a concealed weapon (F-4); and
Count 8 — Improperly handling a firearm in a motor vehicle (F-4).
Cuyahoga C.P. No. CR-628608-A. The remaining counts were charged against co-
delinquents J.M., A.W., and K.R. (Cuyahoga C.P. Nos. CR-628608-B, C, and D).
Counts 1- 5 included one- and three-year firearm specifications, two
weapons-forfeiture specifications, and a criminal-gang-activity specification.
According to Kimbrough, only Counts 2, 3, and 6 were the subject of the juvenile
court proceedings. Also, on May 14, 2018, in Cuyahoga C.P. No. CR-18-628578,
Kimbrough was indicted, as the sole defendant for the same eight counts that were
contained in the juvenile court Detention Center complaint.
After discovery concluded, on December 6, 2018, Kimbrough
entered into plea agreements in both cases. In the Collinwood case, the then 16-
year-old Kimbrough pleaded guilty to:
Count 2 — Felonious assault in violation of R.C. 2903.11(A)(2), a felony
of the second-degree;
Count 3 — Aggravated robbery in violation of R.C. 2911.01(A)(1), a
felony of the first-degree; and
Count 6 — Receiving stolen property, in violation of R.C. 2913.51(A), a
felony of the fourth-degree.
Counts 2 and 3 included one-year firearm and two weapons forfeiture specifications.
All remaining counts and specifications, including gang activity, were nolled.
In the Detention Center case, Kimbrough pleaded guilty to:
Count 1 — Escape, R.C. 2921.34(A)(1), a felony of the second-degree;
Count 4 — Aggravated riot, in violation of R.C. 2917.02(B)(2), a felony
of the third-degree; and
Count 6 — Vandalism, in violation of R.C. 2909.05 (B)(2), a felony of
the fourth-degree.
In addition, the state explained:
For purposes of the record, the State has indicated to defense counsel
that it would not oppose concurrent sentences in these two cases, Your
Honor. There has been no actual plea as to an agreed term of any
length, but the State is not going to oppose concurrent sentences if
that’s the Court’s pleasure.
(Tr. 9.)
Kimbrough was sentenced on January 9, 2019. In the Collinwood
case, Count 2 felonious assault and Count 3 aggravated robbery merged as allied
offenses. Sentencing proceeded on Count 3 for a term of six years on the base charge
plus the one-year firearm specification, an 18-month concurrent term on Count 6,
five years of mandatory postrelease control and forfeiture of the handgun.
Kimbrough was sentenced in the Detention Center case to two years
on Count 1 escape, 12 months on Count 4 aggravated riot, and nine months on
Count 6 vandalism, to run concurrent with each other and with the seven-year
sentence in the Collinwood case. The trial court also advised Kimbrough that the
three years of mandatory postrelease control is overridden by the five years in the
Collinwood case so that the five-year mandatory postrelease control applied.
Court costs were imposed in both cases but no fines. Kimbrough
received jail-time credit in both cases for time served up and through the date of his
transfer. Each sentencing entry provides that Kimbrough received jail-time credit
for 365 days. However, we note that neither trial court journal entry states that the
sentences in each case run concurrent to one another, but the record reflects that
they are concurrent sentences. (Tr. 65.) The trial court shall issue a nunc pro tunc
entry to reflect that the sentences are concurrent. “The function of a
nunc pro tunc is not to change, modify, or correct erroneous judgments, but merely
to have the record speak the truth.” State v. Kimmie, 8th Dist. Cuyahoga No. 98979,
2013-Ohio-2906, ¶ 20, citing Ruby v. Wolf, 39 Ohio App. 144, 147, 177 N.E. 240 (8th
Dist.1931); Dentsply Internatl., Inc. v. Kostas, 26 Ohio App.3d 116, 118, 498 N.E.2d
1079 (8th Dist.1985).
The cases have been consolidated for appeal.
II. Assignments of Error
Kimbrough assigns as error:
I. The Cuyahoga County Juvenile Court violated Kimbrough’s right
to due process of law, because that court’s probable cause
determination was not supported by sufficient, reliable, and
credible evidence, in violation of the Fifth and Fourteenth
Amendments to the U.S. Constitution, and Article I, Sections 10
and 16 of the Ohio Constitution.
II. The juvenile court abused its discretion and violated 15-year-old
Terrance Kimbrough’s right to due process of law when it
determined that he was not amenable to treatment in the
juvenile system, in violation of R.C. 2152.12(B); Fifth and
Fourteenth Amendments to the U.S. Constitution, and Article I,
Sections 10 and l6, Ohio Constitution.
A. The juvenile court cannot fail to consider available
treatment options in the juvenile system merely because
the youth was involved in the immature acts of destroying
and/or defacing Detention Center property.
B. The juvenile court cannot ignore obvious evidence of
immaturity, poor judgment, unformed and/or
undeveloped character, and susceptibility to negative
influences and peer pressure.
C. The juvenile court lost focus on the statute’s presumption
of retention in the juvenile system and disregarded the
professional assessment that numerous factors suggested
Kimbrough was amenable to treatment.
D. The juvenile court never considered the wide array of
dispositional options available to it for this young teen.
E. The juvenile court did not consider how Kimbrough would
fare in adult prison.
III. The sentence imposed in the adult court is contrary to law
and/or not supported by the record, thereby requiring this Court
to take action under State v. Jones, 2018-Ohio-498 (8th Dist.
App. 2018) (en banc) and R.C. 2953.08.
III. Probable Cause
A. Standard of Review
Kimbrough argues that the trial court’s probable cause
determination was not supported by sufficient, reliable, and credible evidence.
Kimbrough was 15 years of age at the time the crimes were committed.
R.C. 2152.12(A)(1)(a)(ii) provides:
(a) After a complaint has been filed alleging that a child is a
delinquent child for committing an act that would be aggravated
murder, murder, attempted aggravated murder, or attempted
murder if committed by an adult, the juvenile court at a hearing
shall transfer the case if either of the following applies: * * *
(ii) The child was fourteen or fifteen years of age at the time
of the act charged, section 2152.10 of the Revised Code
provides that the child is eligible for mandatory transfer,
and there is probable cause to believe that the child
committed the act charged.
Id.R.C. 2152.10(B) governs in this case:
(B) Unless the child is subject to mandatory transfer, if a child is
fourteen years of age or older at the time of the act charged and
if the child is charged with an act that would be a felony if
committed by an adult, the child is eligible for discretionary
transfer to the appropriate court for criminal prosecution. In
determining whether to transfer the child for criminal
prosecution, the juvenile court shall follow the procedures in
section 2152.12 of the Revised Code. If the court does not transfer
the child and if the court adjudicates the child to be a delinquent
child for the act charged, the court shall issue an order of
disposition in accordance with section 2152.11 of the Revised
Code.
(Emphasis added.) Id.In considering the propriety of the discretionary bindover of a 15-
year-old under R.C. 2152.12(B), the juvenile court determines whether the state’s
evidence credibly supports each element of the offense to find that probable cause
exists that the juvenile committed the offense. In re C.G., 8th Dist. Cuyahoga
No. 97950, 2012-Ohio-5286, ¶ 31, citing State v. Iacona, 93 Ohio St.3d 83, 93, 2001-
Ohio-1292, 752 N.E.2d 937:
Probable cause in this context is not guilt beyond a reasonable doubt;
it is evidence that raises more than a suspicion of guilt. In re A.J.S., 120
Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶16. This standard
requires the juvenile court to “evaluate the quality of the evidence
presented by the state in support of probable cause as well as any
evidence presented by the respondent that attacks probable cause.”
In re C.G. at ¶ 31, quoting Iacona at 93.
We apply a dual standard to our review of the juvenile court’s
determination. On the one hand, we “defer to the court’s credibility determinations
by reviewing for an abuse of discretion.” Id. On the other hand, we “conduct a de
novo review” of the trial court’s legal conclusion that sufficient probable cause
existed to “believe that the juvenile committed the charged act.” Id., citing In re
A.J.S. at ¶ 1.
We are also cognizant that the probable cause standard is not as
stringent as that of beyond a reasonable doubt and considers whether the state has
demonstrated more than a mere suspicion of guilt when weighed upon any evidence
presented by the defense. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897
N.E.2d 629, ¶ 16.
B. Discussion
1. Collinwood Case
Father Kumse testified at the probable cause hearing for Kimbrough,
J.M., and A.W. Father Kumse said that he was walking his dog on the parish campus
at approximately 6:00 p.m. on December 11, 2017, when he noticed lights at the
parish school. He took care of other tasks and, a couple of hours later, decided to
return to the building to turn off the lights and secure other areas. Father Kumse
noticed a parked dark-colored minivan and heard several voices but did not
investigate.
Father Kumse saw someone walking quickly down the alleyway near
the chicken coop which was not unusual because neighbors used the path as a
shortcut. He was walking toward the rectory when two young females ran by him
toward the minivan. Two young males emerged from the bushes near the parking
lot and told Father Kumse to give them the eggs. Father Kumse froze when he saw
that one had a gun. The males stood 10 to 15 feet away from him.
Father Kumse began to yell and run and heard a shot. He turned to
see if the youth were still in pursuit and heard another shot as he lost his balance
and fell in the parking lot. He ran, fell again, and turned to see the group running
toward the minivan that had pulled up beside the school building. The minivan left.
Father Kumse concluded that the females must have come from a
nearby store. The store owner confirmed that the females had been at the store and
recognized one of them as the daughter of an acquaintance. Father Kumse returned
to the rectory and contacted 911. Father Kumse was sure that he only saw one gun
but cannot say whether it was real or fake.
Father Kumse described the parish video surveillance footage
recorded by multiple cameras at the premises. He identified the two females that he
encountered who were heading toward the store and later running past Father
Kumse toward the parking lot. Another clip depicts Father Kumse running and
falling. Father Kumse also identified the bushes that the males emerged from, where
he was when he heard the shots and the minivan that was pulling up to pick up the
individuals.
Another camera angle showed the two males coming from the area
of the minivan and walking to the areas by the bushes. The males appeared after the
females ran by Father Kumse. He identified a flash depicted on another segment as
evidence of the shot.
Father Kumse identified the school, rectory, parking lot, and other
areas of the parish campus on a map and recalled that he dropped the eggs that he
collected from the chicken coop when he fell. A medical examination revealed severe
inflammation and a tear to Father Kumse’s left rotator cuff. Father Kumse was
unable to identify the individuals.
Det. Warnock and Detective Donald Nuti (“Det. Nuti”) received an
aggravated burglary report involving a minivan that was stolen from a juvenile
group home. They also viewed a video of the Collinwood case incident that depicted
a minivan that fit the description of the stolen vehicle. The group home
administrator identified group home resident J.M. as a possible participant in the
minivan theft. The store owner provided information about T.P., one of the two
females at the store that evening. T.P.’s name was also listed as a possible suspect
in the minivan theft report.
Det. Warnock and Det. Nuti met with J.M. and his parents. J.M.
confessed that he was present at the incident and shot a gun twice. He also identified
his accomplices and his description matched the events depicted in the surveillance
videos. J.M. advised that the other suspects were staying at T.P.’s home and
Det. Warnock and Det. Nuti located the minivan two houses north of T.P.’s house.
(Tr. 68.) Det. Warnock and Det. Nuti knocked on the door. Kimbrough, M.M., and
T.P. emerged while allegedly muttering M.B.K., the abbreviation for My Brother’s
Keeper gang.
Kimbrough told Det. Warnock and Det. Nuti that T.P. hid a gun at
her house. T.P.’s father gave permission to search. A .38 caliber firearm with six
rounds and two spent casings were discovered in a bedroom. An inoperable .22
caliber semiautomatic pistol in the parent’s room in a gun case. No shell casings
were found at the crime scene. (Tr. 72.) Det. Warnock identified multiple
photographs of the scene and the minivan.
Det. Nuti interviewed A.W. who admitted his role in the Collinwood
incident and identified the accomplices. “He said he was there, there were guns in
the van, he held the gun that they went out to rob the priest, but he said he didn’t
need the gun and he left the gun in the car.” (Tr. 147.) This testimony contradicts
the video and photographic evidence that shows A.W. point a gun and shoot at
Father Kumse.
T.P. pleaded guilty to aggravated robbery with a one-year firearm
specification and tampering with evidence and agreed to testify against the others.
T.P. identified photographs from the surveillance video and identified herself, K.M.,
the other female that was present, J.M., A.W., M.M., and Kimbrough whose
nickname was “Man-Man.” (Tr. 99.)
T.P. met Kimbrough a year earlier and they talked almost daily.
(Tr. 102.) T.P. identified a photograph of the minivan and admitted that, the day
before the incident, Kimbrough was driving T.P., M.M., and J.M. around in the
group home minivan. The next day, Kimbrough drove T.P., J.M., and M.M. to pick
up K.M. and A.W. from school. They parked in the parish church parking lot so that
T.P. and K.M. could visit a friend who lived in a house adjacent to the lot.
The friend was not at home, so the two females headed to the store.
They were running back across the parish pathway toward the van when they saw
Father Kumse walking.
[T]hat’s when * * * J.M. and A.[W.] came out the bushes talking about
I need everything and I thought they was talking to us because we had
the cookies. But as soon as we got in the van, that’s when everything
happened. * * *
That’s when we heard the priest screaming and then we heard the
gunshots.
(Tr. 117.) Kimbrough and M.M. were still in the van. J.M. and A.W. returned to the
van and the group departed. They dropped off K.M. and A.W. and the others went
to T.P.’s house.
T.P. saw Kimbrough with a revolver at her house prior to the
incident. A.W. had a gun at the parish campus and J.M. had the revolver. When
police arrived, T.P. moved the revolver from the table beside her bed where
Kimbrough had allegedly placed it and hid it in a closet. T.P. also confirmed that
Kimbrough belonged to the M.B.K. gang.
The group did not discuss committing a robbery when they were
driving to the parish campus. T.P. did not see Kimbrough with a gun or hear him
talk about a gun. The second gun discovered during the search of T.P.’s home was
not the gun that A.W. had in the van during the Collinwood incident.
The defense presented no witnesses or exhibits. We agree with the
trial court’s observation that T.P.’s testimony weighs heavily in favor of probable
cause. Kimbrough, A.W., and J.M. “are all tied together” by the “admissions they
made to law enforcement” and the testimony of T.P. (Tr. 169-170.)
The evidence produced and the testimony of the Det. Warnock,
Det. Nuti, Father Kumse, and T.P. establish that: (1) Kimbrough was at the scene;
(2) he was driving the van; (3) shots were fired; and (4) he was complicit in the
events. Kimbrough and the co-delinquents stayed at T.P.’s house after the incident.
Kimbrough’s possession of the revolver prior to and after the incident was
established by T.P., though J.M. wielded the weapon during the attempted robbery.
The probable cause standard is not as stringent as that of beyond a
reasonable doubt. It considers whether the state has demonstrated more than a
mere suspicion of guilt when weighed upon any evidence presented by the defense.
In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 42. The
evidence and testimony support that Kimbrough drove the van, remained at the
scene, and drove the group away after the incident. J.M. admitted, and T.P.
confirmed, that he had a revolver during the commission of the incident, that shots
were fired and that J.M. and A.W. returned to the van with guns. Thus, the
aggravated robbery charge with the gun specification is supported.
Further, the record supports the trial court’s observations on the
remaining counts, finding that Kimbrough
[i]s at least on the probable cause level culpable with respect to the
complicity. He was more than a bystander in this instance. Aiding and
abetting, that is what [Kimbrough] was doing in this instance. Same
thing holds true for the felonious assault * * * and the receiving stolen
property [charges] with the one- and three-year gun spec.
(Tr. 175.) Also, supporting probable cause for tampering with evidence, “[a]t some
point” subsequent to J.M. shooting the gun, it “finds its way into Kimbrough’s
hands” pursuant to T.P.’s testimony that Kimbrough put the revolver on the table by
T.P.’s bed and T.P. hid the weapon when police arrived. (Tr. 174.)2
2 As the state points out, Kimbrough was not convicted of tampering with evidence
and so was not prejudiced as a result. State v. Frazier, 8th Dist. Cuyahoga Nos. 106772
and 106773, 2019-Ohio-1433, ¶ 30, citing State v. Lenard, 8th Dist. Cuyahoga No. 99149,
2013-Ohio-1995, ¶ 19 (“appellant benefits from a dismissal because he has one fewer
conviction.”).
After a de novo review of the record, we do not find that the trial
court abused its discretion by determining that probable cause exists that
Kimbrough was a participant in the crimes charged. The trial court lawfully
exercised the discretionary bindover determination and ordered a psychological
examination prior to the amenability hearing.
2. Detention Center Case
The probable cause hearing in this case was held on March 16, 2018,
for co-delinquents Kimbrough, T.A., E.B., and D.W. Detention Center Activities
Assistant Shauna Nevel (“Nevel”) testified that a detention housing unit contains
three living pods. Each living pod contains ten living cells for sleeping and a
common living area. There is also a common day room for the three living pods in
each housing unit that is only accessible by Detention Center permission. Detainees
spend the majority of their time in the respective pods. When there are more than
ten detainees per pod, “sleeping boats” are set up in the room.
Twelve detainees were assigned to Kimbrough’s pod the day of the
incident. Nevel spent considerable time describing the security video depictions
though she was not present the evening the incident occurred. Kimbrough, T.A.,
E.B., and two others were playing cards in the pod living area. A few minutes later,
the detainees begin throwing playing cards, books, crates, flipping tables, and
throwing other items in the room. Kimbrough is seen throwing books and a crate, a
chair, and a staff table. Kimbrough’s activities included using chairs to block the
pod entrance, throwing a table, throwing a chair at the television, striking windows
with a table leg, jumping on sleeping boats, striking the television, water fountain,
and ceiling lights with a table leg and throwing a table leg at various windows.
Witnesses testified that the group was attempting to escape. The
disturbance lasted for approximately 90 minutes with periodic calmer interludes.
Cuyahoga County Sheriff’s Deputy Antonios Makrinos (“Makrinos”)
responded with the S.W.A.T. unit to a “riot-type situation in one of the pods.”
(Tr. 82.) One of the pods had
a bunch of smashed-up glass. The windows were smashed. A bunch of
males had pipes. I believe they were the legs of a table. They were
hitting windows. They spilled liquids all over the floors and were not
compliant with any orders from the staff.
(Tr. 82.) The detainees were taunting the officers, forcefully hitting the window
glass with table legs and failed to obey directions. Makrinos described T.A. and E.B.
as the apparent ring leaders.
Cuyahoga County Sheriff’s Deputy Chris Cepik (“Cepik”) echoed
Makrinos’s observations. Cepik added that water was pouring from the damaged
sprinkler system and detainees were lathering their bodies with soap.
Kimbrough was charged with: escape, R.C. 2921.34(A)(1); inciting
to violence, R.C. 2917.01(A)(1) and (A)(2); aggravated riot, R.C. 2917.02(B)(2) and
(A)(2); vandalism, R.C. 2909.05 (B)(2); possessing criminal tools, R.C. 2923.24(A);
and disorderly conduct, R.C. 2917.11(A)(5). The parties stipulated to damages in
the amount of $7,500 or more.
The trial court emphasized that the participants “acted together.”
(Tr. 150.) “This was a group effort, not individuals committing one particular act,
but a group committing several acts together.” Id.R.C. 2921.34(A)(1) provides that a person under detention shall not
knowingly, or purposely attempt to break the detention. “Detention” is defined as
“confinement in any public or private facility for custody of persons charged with or
convicted of a crime.” R.C. 2921.01(E). The trial court explained that attempting to
leave an area of detention includes the building, the pods and other locked, separate
detention areas within the facility. Of import in the determination is the photograph
of the pod’s back exterior window. The force applied to the window was focused on
a concentrated area that indicates the intent to break the window, meeting the
threshold of probable cause for the charge against Kimbrough, T.A., and E.B.
R.C. 2917.02(B)(2), aggravated rioting, provides that “[no] person,
being an inmate in a detention facility, shall violate division (A)(2) of this section or
section 2917.03 [governing riots] of the Revised Code.” R.C. 2917.02(A)(2) states
that “[n]o person shall participate with four or more others in a course of disorderly
conduct pursuant to R.C. 2917.11 * * * with purpose to commit or facilitate the
commission of any offense of violence.”
The video and testimony support the trial court’s finding of probable
cause for aggravated rioting and Kimbrough’s active involvement with E.B., T.A.,
D.W. along with the others in the pod:
The video clearly indicates that there were four or more people engaged
in a course of disorderly conduct with the purpose to intimate a public
official, employee, into taking or refraining from official action or the
purpose to hinder, impede or obstruct the function of government.
All those guards were standing outside. The police officers were
standing outside, not wanted to enter because of the behavior [of] these
young men.
They were being intimidated by their behavior, flexing, throwing up
what the officers believed to be gang signs, although they weren’t
specific in being able to name them, but they believed that that’s what
they were, but as a way to intimidate them and prevent them or hinder
them from being able to engage in their official acts, to hinder, to
impede or obstruct it.
(Tr. 155-156.)
Finally, there is probable cause for the vandalism elements under
R.C. 2909.05(B)(2):
No person shall knowingly cause serious physical harm to property that
is owned, leased, or controlled by a governmental entity. A
governmental entity includes, but is not limited to, the state or a
political subdivision of the state, a school district, the board of trustees
of a public library or public university, or any other body corporate and
politic responsible for governmental activities only in geographical
areas smaller than that of the state.
The parties stipulated that the facility damage exceeded $7,500. The housing unit
was closed for repairs for several months and 44 detainees were transferred to other
units.
After a de novo review of the record, we do not find the trial court’s
determination of probable cause that Kimbrough committed the crimes charged
constitutes an abuse of discretion.
C. Conclusion
The first assigned error lacks merit.
IV. Amenability
A. Standard of Review
We review a challenge to the juvenile court’s determination on
amenability for an abuse of discretion. State v. Johnson, 2015-Ohio-96, 27 N.E.3d
9, ¶ 36 (8th Dist.), citing State v. Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio-
3725, ¶ 9, citing In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629,
¶ 39.
[A] “juvenile court enjoys wide latitude to retain or relinquish
jurisdiction.” State v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181(1989). And given the discretion afforded the juvenile court by the
legislature in determining a juvenile’s amenability to the juvenile
justice system, “[i]f there is some rational and factual basis to support
the trial court’s decision, we are duty bound to affirm it regardless of
our personal views of the evidence.” State v. West, 167 Ohio App.3d
598, 2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.). We therefore
will not reverse a juvenile court’s decision to transfer unless the
decision was unreasonable, arbitrary, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).
Johnson at ¶ 36.
R.C. 2152.12(B) and Juv.R. 30 provide as to discretionary transfers:
“Under R.C. 2152.12(B), after a complaint has been filed charging a
child with offenses that would be a felony if committed by an adult, a
juvenile court may transfer jurisdiction to the general division of the
common pleas court if it finds that (1) the child was 14 years of age or
older at the time of the act; (2) there is probable cause that the child
committed the act; and (3) the child is not amenable to rehabilitation
within the juvenile justice system and, to ensure the safety of the
community, the child should be subject to adult sanctions.”
Johnson at ¶ 33, quoting Jones at ¶ 7.
Juv.R. 30(C) provides:
Discretionary transfer. In any proceeding in which transfer of a case for
criminal prosecution is permitted, but not required, by statute, and in
which probable cause is found at the preliminary hearing, the court
shall continue the proceeding for full investigation. The investigation
shall include a mental examination of the child by a public or private
agency or by a person qualified to make the examination. When the
investigation is completed, an amenability hearing shall be held to
determine whether to transfer jurisdiction. The criteria for transfer
shall be as provided by statute.
A hearing was conducted pursuant to R.C. 2152.12(B) to determine
whether Kimbrough’s amenability to rehabilitation in the juvenile system or for
transfer. Pursuant to R.C. 2152.12(C), the juvenile court ordered an investigation of
Kimbrough’s history, education, mental state, family situation, “and any other factor
bearing on whether the child is amenable to juvenile rehabilitation.” Id.R.C. 2152.12(D) and (E) list the factors to consider for and against
bindover. The preamble for each subsection explains that a trial court “shall”
consider the listed factors but may also consider “any other relevant factors.” Id.See also Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 35, citing Jones, 8th Dist. Cuyahoga
No. 99044, 2013-Ohio-3725, ¶ 8.
R.C. 2152.12(D) lists factors that support transfer of jurisdiction of
the case:
(1) The victim of the act charged suffered physical or psychological
harm, or serious economic harm, as a result of the alleged act.
(2) The physical or psychological harm suffered by the victim due to
the alleged act of the child was exacerbated because of the
physical or psychological vulnerability or the age of the victim.
(3) The child’s relationship with the victim facilitated the act
charged.
(4) The child allegedly committed the act charged for hire or as a
part of a gang or other organized criminal activity.
(5) The child had a firearm on or about the child’s person or under
the child’s control at the time of the act charged, the act charged
is not a violation of section 2923.12 of the Revised Code, and the
child, during the commission of the act charged, allegedly used
or displayed the firearm, brandished the firearm, or indicated
that the child possessed a firearm.
(6) At the time of the act charged, the child was awaiting
adjudication or disposition as a delinquent child, was under a
community control sanction, or was on parole for a prior
delinquent child adjudication or conviction.
(7) The results of any previous juvenile sanctions and programs
indicate that rehabilitation of the child will not occur in the
juvenile system.
(8) The child is emotionally, physically, or psychologically mature
enough for the transfer.
(9) There is not sufficient time to rehabilitate the child within the
juvenile system.
R.C. 2152.12(E) lists factors to be considered that support retention
of jurisdiction by the juvenile court.
(1) The victim induced or facilitated the act charged.
(2) The child acted under provocation in allegedly committing the
act charged.
(3) The child was not the principal actor in the act charged, or, at the
time of the act charged, the child was under the negative
influence or coercion of another person.
(4) The child did not cause physical harm to any person or property,
or have reasonable cause to believe that harm of that nature
would occur, in allegedly committing the act charged.
(5) The child previously has not been adjudicated a delinquent child.
(6) The child is not emotionally, physically, or psychologically
mature enough for the transfer.
(7) The child has a mental illness or intellectual disability.
(8) There is sufficient time to rehabilitate the child within the
juvenile system and the level of security available in the juvenile
system provides a reasonable assurance of public safety.
Both statutes allow the juvenile court to consider “any other factors
deemed relevant” to determine amenability. Johnson, 2015-Ohio-96, 27 N.E.3d 9,
¶ 35, citing Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio-3725, ¶ 8.
B. Discussion
The Collinwood and Detention Center cases were consolidated for
the May 4, 2018 amenability hearing. The state called Father Kumse, Det. Warnock,
Jenkins, the group homeowner, and Cuyahoga County Sheriff’s Sergeant Thomas
Bradley. Photographic and video evidence was also admitted.
Father Kumse briefly described the events and testified to the
economic and psychological harm aspects of the amenability factors. In addition to
the fear of being shot, Father Kumse suffered a partial tear to his rotator cuff, has
received medication and therapy and will probably need surgery. He has difficulty
sleeping, no longer walks the dog in the evening and seeks cover when he hears shots
in the neighborhood.
Detective Warnock testified that the M.B.K. gang is a Lakeshore
gang affiliate. Kimbrough, also known as “Lakesho Man Man,” A.W., M.M., and
J.M. are members of M.B.K. A tag is a gang sign used to take credit for a crime. A
car parked in the parish campus parking lot the night of the Collinwood incident
contained the tag “Lakesho Man Man” and “M.B.K.” (Tr. 15-16.) One of the walls
on the upper level of T.P.’s house was marked “Lakesho Man Man, and M.B.K.
Main.” (Tr. 16.) Det. Warnock also testified that the juveniles arrested at J.P.’s
house softly repeated “M.B.K.” to each other. (Tr. 17.)
Jenkins recounted the events and testified to the disruptions to
protocol and expenses incurred by the county. Repairs were ongoing at the time of
the hearing but were estimated at $200,000.
Sergeant Bradley identified the contents of a video taken March 16,
2018, of holding cell eight for the trial court. Kimbrough is writing or scratching
graffiti on the wall that Detective Warnock testified said “[f]ree Lakeshore Man
Man” and “[f]*ck T.T., she a snitch.” (Tr. 19.)
Kimbrough argues that he is amenable to rehabilitation in the
juvenile system and the evidence presented in this case does not overcome the
presumption of retention in the juvenile system under. R.C. 2152.12(B)(3).
(B) Except as provided in division (A) of this section, after a
complaint has been filed alleging that a child is a delinquent child
for committing an act that would be a felony if committed by an
adult, the juvenile court at a hearing may transfer the case if the
court finds all of the following:
(1) The child was fourteen years of age or older at the time of
the act charged.
(2) There is probable cause to believe that the child
committed the act charged.
(3) The child is not amenable to care or rehabilitation within
the juvenile system, and the safety of the community may
require that the child be subject to adult sanctions. In
making its decision under this division, the court shall
consider whether the applicable factors under division (D)
of this section indicating that the case should be
transferred outweigh the applicable factors under division
(E) of this section indicating that the case should not be
transferred. The record shall indicate the specific factors
that were applicable and that the court weighed.
More specifically, Kimbrough argues:
The juvenile court cannot fail to consider available treatment options
in the juvenile system merely because the youth was involved in the
immature acts of destroying and/or defacing Detention Center
property.
The juvenile court cannot ignore obvious evidence of immaturity, poor
judgment, unformed and/or undeveloped character, and susceptibility
to negative influences and peer pressure.
The juvenile court lost focus on the statute’s presumption of retention
in the juvenile system and disregarded the professional assessment
that numerous factors suggested Kimbrough was amenable to
treatment.
The juvenile court never considered the wide array of dispositional
options available to it for this young teen.
The juvenile court did not consider how Kimbrough would fare in adult
prison.
The record does not support Kimbrough’s assertions.
The trial court determined as to both cases that “the results of
previous juvenile sanctions and programs show rehabilitation will not occur in the
juvenile system.” (Tr. 48.) R.C. 2152.12(D)(7).
1. Collinwood Case
In the Collinwood case, the trial court found that Father Kumse
“suffered physical harm” and residual shoulder problems that support transfer
under R.C. 2152.12(D)(1). (Tr. 49.)
[Father Kumse] has now further corroborated the issue that his
shoulder has caused him some significant problems wherein he’s going
to have to have surgery at some point to relieve the problems that he’s
having sleeping and just operating the shoulder on a daily basis.
Id. The trial court did not consider Father Kumse’s age to be a factor supporting
transfer under R.C. 2512.12(D)(2) because there was no “connection between” his
“age and his injury.” Id.Kimbrough did not have a relationship with the victim negating
R.C. 2152.12(D)(3). The trial court determined that Kimbrough’s gang affiliation
supported transfer under R.C. 2152.12(D)(4) based on the evidence presented at the
amenability hearing and T.P.’s testimony during the probable cause hearing.
“There’s testimony from Detective Warnock about the Lakeshore Gang and the
feeder gangs and one of them being M.B.K.” (Tr. 50.)
And then we have video evidence of him defacing the property here
with Lakeshore Man Man, Free Lakeshore Man Man, and that’s
Terrance Kimbrough actually causing that in the wall.
That’s enough for the Court to find that he’s part of a gang and the tag
at the place of the incident shows that it’s connected with that incident,
so the Court finds that that particular factor is applicable.
(Tr. 51.)
R.C. 2152.12(D)(5) did not support transfer because Kimbrough did
not possess or control a firearm at the time of the act, and there is no indication in
the statute that complicity is a consideration. Kimbrough was not on parole,
awaiting adjudication, community control or otherwise subject to
R.C. 2152.12(D)(6).
The trial court did find that R.C. 2152.12(D)(7) was satisfied. Though
Kimbrough completed probation for the rape charge, the trial court rejected the
claim that Kimbrough’s completion of probation was a success. “[F]or me successful
completion means that you don’t come back to the Court.” (Tr. 52-53.) “Instead we
have 13 subsequent charges against [Kimbrough] after he successfully completed
probation.” (Tr. 53.) These facts, coupled with his behavior in the Detention Center
case, demonstrated to the court that Kimbrough would not be rehabilitated in the
juvenile system.
The trial court held that Kimbrough was emotionally, physically, or
psychologically mature enough for the transfer under R.C. 2152.12(D)(8) and that
there is no indication in the Psychological Evaluation Report (“PER”) that he
suffered from mental health issues or is psychologically, emotionally, or physically
immature. (Tr. 54.)
The court did not find that transfer under R.C. 2152.12(D)(9) is
supported by the record:
The Court does not find, however, that there is insufficient time for
rehabilitation in the Juvenile System just based on his age. He has not
reached the age of majority. He has at least two years under that status.
Additionally, the Court does have jurisdiction for five years because if
the Court decide that he is amenable and he’s found delinquent in [this
case] as well as the [Detention Center] case, the Court could construct
a disposition that keeps him at the Ohio Department of Youth Services
until he’s 21.
(Tr. 54-55.) “So based on the Court’s assessment, there are four out of nine factors
favoring transfer, and that’s for the [Collinwood case].” (Tr. 55.)
The trial court then addressed the R.C. 2152.12(E) factors that
support the trial court’s retention of jurisdiction. The evidence did not support that
Kimbrough acted under provocation, induced the act, was the principal offender or
was under the influence of or coerced by another. R.C. 2152.12(E)(1)-(3). The trial
court held that Kimbrough’s acts caused harm pursuant to Father Kumse’s
testimony and Kimbrough had been previously found delinquent so that
R.C. 2152.12(E)(4)-(5) did not support retention. The trial court also determined
that Kimbrough is psychologically, physically, and emotionally mature enough for
transfer and is not mentally ill or mentally challenged. R.C. 2152.12(E)(6)-(7).
The trial court reiterated its finding that sufficient time existed for
Kimbrough to be rehabilitated in the juvenile system. However, the trial court
disagreed that the level of security in the juvenile system provides a reasonable
assurance of public safety pursuant to R.C. 2152.12(E)(8).
Well, I can’t necessarily say that if in fact he participates or there’s
probable cause indicating that he’s participated in acts which destroy
the very system that we have here to ensure that the public will be safe.
Additionally, he is engaged in assaultive behaviors, destroying property
that belongs to the public and, therefore, only half of that factor would
be applicable.
And so the Court find there’s one and a half factors against transfer
versus four factors favoring transfer.
(Tr. 56-57.)
Finally, the trial court considered the seriousness of the aggravated
robbery offense.
I had the opportunity to watch the video where [Father Kumse] is being
chased ty two individuals firing guns at him, a defenseless elderly priest
whose only responsibility that night was to check on the chicken coop
and then he is frightened to the point where he things that he’s about
to lose his life all for what?
And Terrance Kimbrough, while he may not have been one of the
individuals firing the gun, he still was involved. He still was complicit
as much as they were because he was there, and based on the testimony
that the Court recalls, they had all been together most of the day.
So it’s not a surprise that this particularly incident was about to
transpire. You know, they all jumped back into this car with
[Kimbrough] and they all left together.
(Tr. 57-58.)
The trial court concluded that Kimbrough “is not amenable to care
or rehabilitation of the Juvenile Justice System and the * * * safety of the community
requires that he — or may indicate that adult sanctions should be imposed.”
(Tr. 58.) “[T]he Court’s going to grant the State’s motion on this case to relinquish
jurisdiction.” Id.The final judgment entry states that Kimbrough was 15 years of age
at the time of the incident and that probable cause had been demonstrated for all
counts charged in the Collinwood case.
The court finds after a full investigation, including a mental
examination of said child made by a duly qualified person, and after full
consideration of the child’s prior juvenile record, family environment,
school record, efforts previously made to treat and rehabilitate the child
including prior commitments to the Department of Youth Services, the
nature and severity of the offense, herein, the age physical and mental
condition of the victim as effected by the matter herein, and other
matters of evidence, that there are reasonable grounds to believe that
the child herein is not amenable to care or rehabilitation within the
juvenile system.
The court further finds that the safety of the community may require
that the child be subject to adult sanctions.
Journal entry No. 0911185834 (May 8, 2018), p. 3.
The entry listed as factors in favor of transfer pursuant to
R.C. 2152.12(D):
The victim suffered physical or psychological harm, or serious
economic harm.
The child allegedly committed the act charged for hire or as a part of a
gang or other organized criminal activity.
The results of any previous juvenile sanctions and programs indicate
that rehabilitation of the child will not occur in the juvenile system.
The child is emotionally, physically, or psychologically mature enough
for transfer.
Id.The R.C. 2152.12(E) factors in favor of retaining jurisdiction in the
juvenile court:
The child was not the principal actor in the act charged, or, at the time
of the act charged, the child was under the negative influence or
coercion of another person.
There is sufficient time to rehabilitate the child within the juvenile
system, and the level of security available in the juvenile system
provides a reasonable assurance of public safety.
Id.
2. Detention Center Case
The trial court reviewed each of the factors supporting bindover
under R.C. 2152.12(D). The victim suffered serious economic harm.
R.C. 2152.12(D)(1). The physical and mental harm of the victim did not apply.
R.C. 2152.12(D)(2). However, the trial court found that R.C. 2152.12(D)(3) was
supported. “The victim is the” Detention Center. (Tr. 59.) “But for” Kimbrough’s
detention at the center, “he would not have been able to facilitate this act.” (Tr. 59.)
Kimbrough did not act for hire, as part of a gang or brandish a
firearm under R.C. 2152.12(D)(4)-(5). R.C. 2152.12(6) favored transfer because
Kimbrough was awaiting adjudication in the Collinwood case at the time of the
Collinwood incident. R.C. 2152.12(D)(7) also supported transfer. Kimbrough’s
presence before the trial court on the current charges indicated that previous
juvenile sanctions were not successful.
The trial court determined that Kimbrough was emotionally,
physically, and psychologically mature enough for transfer, and that sufficient time
exists for rehabilitation in the juvenile system under R.C. 2152.12(D)(8)-(9). Five of
the nine factors supported transfer.
The R.C. 2152.12(E) analysis of factors against transfer resulted in
the following findings, listed by subsection: (1) the Detention Center did not induce
or facilitate the act; (2) Kimbrough did not act in provocation; (3) Kimbrough was
not the principal actor; (4) Kimbrough did cause harm; (5) Kimbrough was
previously adjudicated delinquent; (6) Kimbrough is emotionally, physically, and
psychologically mature enough for transfer; and (7) Kimbrough is not mentally ill.
Under subsection (8), the trial court again determined that sufficient time exists to
rehabilitate Kimbrough in the juvenile system, but the level of security available
does not support retention.
The trial court concluded,
So it’s one and a half factors against transfer. And again, seriousness of
the act, the destruction of the Detention Center, that was just
outrageous what I witnessed.
And then what caused me even more consternation and anger with
[Kimbrough] and finding that * * * he believes that the Juvenile Justice
System is a joke is his behavior in that back [holding] cell and his
continued inability to be compliant with the rules all the time instead
of engaging in physical altercations with individuals downstairs while
he’s been confined.
This is a big joke to him, and since that’s the case, we’re going to send
him where maybe he doesn’t think it’s a big joke and he’ll take it more
seriously.
The Court find this time again he is not amenable to the care and
rehabilitation of the Juvenile Justice System.
The Court finds that the safety of the community may require that those
sanctions be imposed and, therefore, the Court is going to relinquish its
jurisdiction over this matter.
(Tr. 62-63.)
C. Conclusion
In both cases, the trial court considered Kimbrough’s Ohio Youth
Assessment System Report and the parties stipulated to the content of the PER. The
documents included information about Kimbrough’s prior rape conviction in 2014
that resulted in the imposition of a community control sanction (“CCS”). Also,
according to the reports, Kimbrough did not show remorse or accept responsibility
for the rape. He completed CCS and a couple of years later engaged in the
Collinwood and Detention Center incidents. The reports did not indicate that
Kimbrough suffered from medical, mood, or thought disturbances.
The record demonstrates that the juvenile court carefully considered
the factors of R.C. 2152.12(D) and (E), and “ultimately determined,” wholly within
the juvenile court’s discretion, “that the factors in favor of transfer outweighed the
factors in favor” of retaining jurisdiction. “We cannot say that the trial court’s
decision constitutes an abuse of discretion.” Johnson, 2015-Ohio-96, 27 N.E.3d 9,
at ¶ 44.
V. Sentence
A. Contrary to Law
Kimbrough argues that his seven-year sentence is contrary to law
and is not supported by the record. He seeks relief under State v. Jones, 2018-Ohio-
498, 105 N.E. 702 (8th Dist.) (en banc) and R.C. 2953.08. In Jones, an en banc
panel of this court “held that appellate review of felony sentences ‘includes the
considerations under R.C. 2929.11 and the findings under 2929.12.’” State v.
Kovatch, 8th Dist. Cuyahoga No. 108453, 2020-Ohio-1025, ¶ 23, quoting Jones at
¶ 9.
However,
[W]e may disturb a felony sentence only if we clearly and convincingly
find that either “the record does not support the sentencing court’s
findings” or “the sentence is otherwise contrary to law.”
R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 1, 21-23.
State v. Bush, 8th Dist. Cuyahoga No. 106392, 2018-Ohio-4213, ¶ 22.
We are aware that
[a] plea of guilty is a complete admission of guilt. A defendant who
enters a plea of guilty waives the right to appeal all nonjurisdictional
issues arising at prior stages of the proceedings, although the defendant
may contest the constitutionality of the plea itself.
(Citations omitted.) State v. Bogan, 8th Dist. Cuyahoga No. 84468, 2005-Ohio-
3412, ¶ 14. However, we elect to address the issue in the interest of justice under the
unique circumstances of this case.
Kimbrough was convicted in the Collinwood case for: Count 2,
felonious assault, R.C. 2903.11(A)(2), a second-degree felony; Count 3, aggravated
robbery, R.C. 2911.01(A)(1), a first-degree felony; and Count 6, receiving stolen
property, R.C. 2913.51(A), a fourth-degree felony. Two of the counts included one-
year firearm and two weapons forfeiture specifications. The convictions in the
Detention Center case were for: Count 1, escape, R.C. 2921.34(A)(1), a second-
degree felony; Count 4, aggravated riot, R.C. 2917.02(B)(2), a third-degree felony;
and Count 6, vandalism, R.C. 2909.05(B)(2), a fourth-degree felony.
The Collinwood Counts 2 and 3 merged as allied offenses and
sentencing proceeded on Count 3 for six years on the base charge plus the one-year
firearm specification, an 18-month concurrent term on Count 6, five years of
mandatory postrelease control and forfeiture of the handgun. The Detention Center
sentence was for two years on Count 1, 12 months on Count 4 and nine months on
Count 6 run concurrently with each other and with the seven-year sentence in the
Collinwood case.
The sentencing range for aggravated robbery is three to ten years
under R.C. 2929.14(A)(1). Kimbrough’s sentence was for six years with the one-year
firearm specification. A firearm specification is a sentencing provision and is not a
separate offense subject to merger. State v. Williams, 8th Dist. Cuyahoga No.
81949, 2003-Ohio-3950, ¶ 19-21.
In Ohio,
[a] sentence is contrary to law if the sentence falls outside the statutory
range or if the trial court fails to consider the purposes and principles
of felony sentencing set forth in R.C. 2929.11 and the sentencing factors
set forth in R.C. 2929.12. See, e.g., State v. Pawlak, 8th Dist. Cuyahoga
No. 103444, 2016-Ohio-5926, ¶ 58; State v. Keith, 8th Dist. Cuyahoga
Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 8, citing State v. Hinton,
8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10.
State v. Jung, 2018-Ohio-1514, 111 N.E.3d 54, ¶ 14 (8th Dist.).
Kimbrough’s sentence is not contrary to law. In addition, the record
supports the trial court’s full consideration of the principles and purposes of felony
sentencing the applicable factors per R.C. 2929.11 and 2929.12.
We do not find that Kimbrough’s sentence is contrary to law.
B. Disproportionate Sentence
Kimbrough also argues that his sentence was disproportionate to
that of the codefendants and similar offenders. We review this challenge for plain
error because it was not made in the trial court. “Under the plain-error analysis” a
party is required to “‘establish that the outcome of the trial would clearly have been
different but for the trial court’s allegedly improper actions.’” State v. Thompson,
8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, ¶ 17, quoting State v. Waddell, 75
Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).
Kimbrough argues that he has never been imprisoned and that his
youth should be considered as a mitigating factor. He also argues that he was not a
leader, but a follower, in this case and that the psychological expert determined that
Kimbrough “would be responsive to the care and rehabilitative service available
through the Juvenile Justice System.” PER (Apr. 25, 2018), p. 7-8.
Kimbrough completed his ninth-grade coursework while
incarcerated in the case. His family appeared to demonstrate their support. His
mother and grandmother apologized to Father Kumse and expressed their remorse.
Kimbrough also accepted responsibility and apologized for his actions. He promised
that he would use the period of incarceration to “come back a better person.”
(Tr. 52-53.) Defense counsel shared Kimbrough’s aspirations to attend college and
pursue architecture.
Father Kumse expressly and eloquently accepted Kimbrough’s
apology and prayed that the difficult lesson would make him a better man. The state
said at sentencing that Kimbrough apparently did not initiate the Detention Center
incident but elected to join in. Also, T.P. said Father Kumse was a target of
opportunity to secure money for gasoline.
Kimbrough also argues the sentence is contrary to law because it is
disproportionate to T.P.’s sentence who was not boundover for adult adjudication.
T.P., however, entered into a plea agreement that included testifying against the
others. The record reflects the revolver used in the Collinwood incident belonged to
Kimbrough and that Kimbrough was the driver of the vehicle involved. In contrast,
codefendant J.M. was sentenced to nine years for his involvement in the case.
This court has recognized:
The courts have not interpreted the notion of consistency to mean
equal punishment for codefendants. State v. Harder, 8th Dist.
Cuyahoga No. 98409, 2013-Ohio-580, ¶ 7. Consistency is not
synonymous with uniformity. State v. Black, 8th Dist. Cuyahoga
No. 100114, 2014-Ohio-2976, ¶ 12. Rather, the consistency
requirement is satisfied when a trial court properly considers the
statutory sentencing factors and principles. State v. O’Keefe, 10th Dist.
Franklin Nos. 08AP-724, 08AP-725, and 08AP-726, 2009-Ohio-1563,
¶ 41. “‘[C]onsistency is achieved by weighing the factors enumerated in
R.C. 2929.11 and 2929.12 and applying them to the facts of each
particular case.’” State v. Wells, 8th Dist. Cuyahoga No. 100365, 2014-
Ohio-3032, ¶ 12, quoting State v. Lababidi, 8th Dist. Cuyahoga
No. 100242, 2014-Ohio-2267, ¶ 16. Consistency “‘requires a trial court
to weigh the same factors for each defendant, which will ultimately
result in an outcome that is rational and predictable.’” State v.
Georgakopoulos, 8th Dist. Cuyahoga No. 81934, 2003-Ohio-4341,
¶ 26, quoting State v. Quine, 9th Dist. Summit No. 20968, 2002-Ohio-
6987, ¶ 12.
State v. Cargill, 8th Dist. Cuyahoga No. 103902, 2016-Ohio-5932, ¶ 11.
In addition,
“[c]onsistency accepts divergence within a range of sentences and takes
into consideration the trial court’s discretion to weigh statutory
factors.” State v. Hyland, 12th Dist. Butler No. CA2005-05-103, 2006-
Ohio-339. See also State v. Switzer, 8th Dist. Cuyahoga No. 102175,
2015-Ohio-2954; State v. Armstrong, 2d Dist. Champaign No. 2015-
CA-31, 2016-Ohio-5263; State v. Murphy, 10th Dist. Franklin
No. 12AP-952, 2013-Ohio-5599, ¶ 14. “Although the offenses may be
similar, distinguishing factors may justify dissimilar treatment.”
State v. Dawson, 8th Dist. Cuyahoga No. 86417, 2006-Ohio-1083, ¶ 31.
Id. at ¶ 12.
We do not find that Kimbrough’s sentence is disproportionate.
C. Serious Youthful Offender
Kimbrough also suggests that the trial court should have exercised
other dispositional options such as blended sentencing for serious youth offenders
“SYO.”
“‘A juvenile charged as a potential serious youthful offender does not
face bindover to an adult court; the case remains in the juvenile court.
Under R.C. 2152.11(A), a juvenile defendant who commits certain acts
is eligible for ‘a more restrictive disposition.’ That ‘more restricted
disposition’ is a ‘serious youthful offender’ disposition and includes
what is known as a blended sentence — a traditional juvenile
disposition coupled with the imposition of a stayed adult sentence.
R.C. 2152.13. The adult sentence remains stayed unless the juvenile
fails to successfully complete his or her traditional juvenile disposition.
R.C. 2152.13(D)(2)(a)(iii). Theoretically, the threat of the imposition of
an adult sentence encourages a juvenile’s cooperation in his own
rehabilitation, functioning as both carrot and stick.’”
Appellant’s brief, p. 33, quoting State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901
N.E.2d 209, ¶ 18.
SYO designations may only be invoked under certain circumstances.
“Juvenile courts are unique and are tied to the goal of rehabilitation.” Id. at 549.
The primary goal of juvenile sentencing is 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.”
Id., quoting R.C. 2152.01(A). In contrast, “[t]he purposes of felony sentencing, on
the other hand, ‘are to protect the public from future crime by the offender and
others and to punish the offender.’ R.C. 2929.11(A).” Id.
Notwithstanding the purpose and policy of the SYO designation, a
juvenile judge may only impose a blended sentence where initiated against a juvenile
pursuant to the statute by indictment (R.C. 2152.13(A)(1)), bill of information,
where the prosecution requests a designation in the original complaint or by filing a
timely notice of intent with the trial court (R.C. 2152.13(B)). An SYO designation
was not available in this case. The prosecution did not seek a designation in this
case.
Moreover,
Discretionary transfer, as its name implies, allows judges the discretion
to transfer or bind over to adult court certain juveniles who do not
appear to be amenable to care or rehabilitation within the juvenile
system or appear to be a threat to public safety.
State v. Hanning, 89 Ohio St.3d 86, 90, 2000-Ohio-436, 728 N.E.2d 1059.
The final assigned error is without merit.
VI. Conclusion
The trial court’s judgment is affirmed. However, we remand this
case to the trial court to enter a nunc pro tunc order consistent with this opinion.
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 of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION
LARRY A. JONES, SR., J., DISSENTING:
R.C. 2152.01 outlines the overarching principles a juvenile court
should keep in mind when rendering its dispositions. The statute provides in
relevant part as follows:
(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. These
purposes shall be achieved by a system of graduated sanctions and
services.
(B) Dispositions under this chapter shall be reasonably calculated to
achieve the overriding purposes set forth in this section,
commensurate with and not demeaning to the seriousness of the
delinquent child’s or the juvenile traffic offender’s conduct and its
impact on the victim, and consistent with dispositions for similar
acts committed by similar delinquent children and juvenile traffic
offenders. The court shall not base the disposition on the race,
ethnic background, gender, or religion of the delinquent child or
juvenile traffic offender.
(Emphasis added.) R.C. 2152.01(A) and (B).
I strongly disagree that the juvenile court’s bindover in this case
achieved the above-stated purposes and, therefore, I respectfully dissent.
Purposes and Principles
In dissenting, I feel that a brief overview of the historical context of
the juvenile justice system and recent research on juvenile offenders in the adult
criminal system is appropriate.
Initially, the juvenile justice system had a bent toward rehabilitating
troubled youth who committed crimes. Briana Morris, A Child is a Child, Except
under Ohio Law: A Discretionary Review of Mandatory Bindovers, 47 Cap. U.L.
Rev. 639, 640 (2019), citing Feld, The Evolution of the Juvenile Court: Race,
Politics, and the Criminalizing of Juvenile Justice (2017); State v. Aalim, 150 Ohio
St.3d 489, 2017-Ohio-2956-83 N.E.3d 883, ¶ 63-64 (O’Connor, C.J., dissenting).
The rehabilitative approach moved through the years to a “scaled-down criminal”
approach, and eventually to a “get tough” approach. Morris at 642-643.3 The get
tough approach was the result of a belief that rehabilitation was failing. Id. at 643-
644. The tougher approach was rooted in the belief that harsher sentences for
youths would help them more than rehabilitation would. Id. In my opinion, the
court took a get tough approach in this case and said as much when it stated the
following at the disposition hearing: “This is a big joke to him, and since that’s the
3 See Morris at 643 for a discussion of the effects of the introduction of crack
cocaine in inner cities and the effect it had on crime among African-American youths, all
while widening the arrest rates for African-American youth and their counterpart white
juvenile offenders. In 1984,“‘[b]lack youths’ Violent Crime Index arrests started at a rate
six times that of white youths * * * and by 1994 rose to * * * a 58% increase.’” Id. at 644,
quoting Feld at 84.
case, we’re gonna send him where maybe he doesn’t think it’s a big joke and he’ll
take it more seriously.”
The goal of the get tough approach was to protect society and to keep
delinquent youths off the streets. Id. But research has shown that any short-term
public protection of incarceration of the youth is offset by the developmental
disruption and increased likelihood of future recidivism. See generally Morris at
666-673. For example, “‘[y]ouths tried as adults reoffend more quickly and more
seriously, thereby negating any short-term crime reduction.’” Morris at 669,
quoting Feld at 122. Simply, the long term effects on youth being sentenced as adults
have lasting, harmful individual and societal effects.
“‘Imprisoning juveniles increases rather than decreases the amount
of subsequent offending.’” Morris at 668, quoting Feld at 118. Further, juvenile
offenders in adult prisons are at an increased risk for victimization due to their
smaller size, physical strength, social skills, and lack of sophistication. Morris at id.,
citing Feld at id. Prison does not foster the appropriate environment for youths to
be able to form an identity, acquire social skills, or make successful transitions to
adulthood. Morris at id., citing Griffin, Office of Juvenile Justice and Delinquency
Prevention, Trying Juveniles as Adults: An Analysis of State and Transfer Laws
and Reporting 4, 26 (2011).
Studies of juvenile crime rates before and after passage of get tough
laws showed that the get tough laws did not have the deterrent effect that many
thought they would. Morris at id., citing Feld at 120. The Center for Disease
Control’s Task Force on Community Preventive Services, for example, reviewed
studies that compared outcomes of youths transferred to adult criminal court with
those who remained in the juvenile justice system. Morris at id., citing Feld at 121.
The conclusion: “‘youths tried as adults had higher and faster recidivism rates,
especially for violent crimes, than their delinquent counterparts.’” Morris at id.,
citing Feld at id.
Of course, there are other collateral consequences of sending
juveniles to adult prisons. For instance, “‘teens under eighteen being held in adult
jails are nineteen times more likely to commit suicide than teens in general and
thirty-six times more likely than those held in juvenile facilities.’” Morris at 669,
quoting Laird, States Raising Age for Adult Prosecution Back to 18, ABA Journal
(Feb. 2017).
Until then-President Barack Obama halted the practice in 2016,
juveniles who were sexually assaulted or faced other problems in prison were often
held in solitary confinement. Morris at id., citing Laird at id. “‘Many of the youth
already have existing issues that are only aggravated by the solitary confinement and
many have suffered abuse, neglect, or another form of trauma at some point in their
life.’” Morris at id., quoting Laird at id.
In short, transferring juveniles to the adult prison system “implicates
the punitive aspect of sentencing and deprives the juvenile of access to the
rehabilitative hallmarks of the juvenile-justice system.” Aalim, 2017-Ohio-2956, 83
N.E.3d 883, ¶ 68 (O’Connor, C.J., dissenting).4
Discretionary Bindovers
Discretionary bindovers, as occurred here, are for children aged 14
or older when there is probable cause to believe that the child committed the
charged act, the child is not amenable to care or rehabilitation within the juvenile
justice system, and the safety of the community may require that the child be subject
to adult sanctions. However, before the transfer, the judge is allowed to order an
investigation into the child’s social history, education, family situation, and any
other factors bearing on whether the child is amenable to juvenile rehabilitation,
including a mental examination of the child, as well as the factors under
R.C. 2152.12(E).
Although discretionary bindovers require probable cause
determinations, many discretionary bindover decisions turn on whether a minor
was amenable to care or rehabilitation within the juvenile system.
In contrast to a probable-cause determination, a denial of a
discretionary-bindover request on the basis of amenability does not
necessitate dismissal of any of the charges in the complaint. Rather, the
juvenile court retains jurisdiction of the case, the complaint continues
4 See Morris at 670-672 for a discussion of a study conducted on data involving
youth from the New York and New Jersey juvenile justice systems; New York’s age of
majority for criminal offending is statutorily set at 16, while New Jersey’s age is 18. The
conclusion: “juvenile prisons are a better option than adult prisons for young offenders.
The overall lasting psychological effects on the juvenile outweigh the fact that adult courts
offer a wider array of services and seem marginally more effective at preventing crimes.”
Id. at 671-672, citing Fagan & Kupchick, Juvenile Incarceration and the Pains of
Imprisonment, 3 Duke F.L. Soc. Change 57-58 (2011).
as it was filed, and if appropriate, the child is prosecuted as a serious
youthful offender under R.C. 2152.11.
In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 15.
The crux of my disagreement with the majority’s decision relates to
its determination regarding Kimbrough’s amenability to care or rehabilitation
within the juvenile system. There is no question that Father Kumse suffered
physical and emotional harm and the detention center was damaged. The record
also shows that Kimbrough had a juvenile adjudication from when he was 11 years
old, and that the detention center incident occurred while he was awaiting
adjudication for the Collinwood case. But for the reasons discussed below, I would
find the juvenile court’s decision on Kimbrough’s amenability an abuse of discretion.
The amenability evaluation in this case showed several grounds that
I believe weighed heavily in favor of the juvenile court retaining jurisdiction. The
evaluation demonstrated that Kimbrough was doing relatively well in school and
had shown some ability to succeed in school when his attention was focused. At the
time of the Collingwood incident, he was a high school freshman, liked his school,
and was “proud that he [was] close to having enough credits to be placed in the 10th
grade.”
Kimbrough did not have any noted problematic involvement with
alcohol or drugs. He had a supportive family. As mentioned, he had one prior
juvenile adjudication from when he was 11-years old. The adjudication stemmed
from an encounter he had with his stepsister, which he disputed. The record shows
that he did “extremely well” on probation, which he completed without incident.
Kimbrough had never had any placement at any Department of Youth Services
(“DYS”) facility.
Further, Kimbrough had a speech impairment and was bullied as a
youth, which led to anger issues. But Kimbrough had been in counseling and had
made strides.
Based on the above mentioned, the expert who completed
Kimbrough’s evaluation identified six bases upon which Kimbrough “would be
responsive to the care and rehabilitative services available through the Juvenile
Justice System.” The evaluation noted:
1. [Kimbrough] had relatively minimal involvement with the
Juvenile Justice System. He has one adjudication for
delinquency.
2. [Kimbrough] has received only probation program services
through the Juvenile Justice System. He has never been
committed to or placed in a facility of [DYS].
3. [Kimbrough] did show an adequate adjustment to his probation.
He was successfully terminated from his probation.
4. [Kimbrough] has had no history of significant problematic or
acting out behaviors in the school setting.
5. [Kimbrough] has had no known history of the problematic use
of alcohol or other drugs.
6. At the age of 16 years and 0 months, [Kimbrough] is well below
the age of majority.
Neither the transcript of the proceedings, nor the juvenile court’s
entries indicate which portions of the evaluation were considered, accepted, or
rejected. Rather, it appears that the juvenile court focused in on two factors in
finding that Kimbrough was not amenable: (1) the nature of the charges, and (2) the
damage done to the detention center.
I am by no means downplaying the crimes that occurred here —
Father Kumse was ambushed as he was collecting eggs from his chicken coop, and
the detention center was significantly damaged by the youths, including Kimbrough,
involved in the incident. But having said that, I think a closer examination of
Kimbrough’s involvement is necessary.
In regard to the robbery and assault of Father Kumse, Kimbrough’s
actions were limited to his mere presence as the driver of the minivan. He did not
leave the van while the other youths assaulted and robbed Father Kumse; he did not
fire any weapons at the priest; and there was no evidence that he knew the co-
delinquents were going to rob and assault Father Kumse.
Further, although he was the driver of the stolen van, the evidence
was scant that he knew or had cause to believe it was stolen. Likewise, as to the
tampering with evidence charge, the evidence showed that Kimbrough took the gun
from his cohort when they returned home and put it on a table. Another cohort took
the gun from the table and placed it in a closet.
In regard to the Detention Center case, the video shows that two
other juveniles, not Kimbrough, were the “ringleaders” of the incident; law
enforcement confirmed this as well. The incident lasted, on and off, for
approximately 90 minutes, and the video shows that the staff at the center did not
enter the “pod” where the disturbance occurred. The disturbance ended when
SWAT deputies from the Cuyahoga County Sheriff’s Department arrived, at which
time, the juveniles completely “surrendered.” While the youths certainly damaged
the center’s property, they did not fight with each other, the staff, who, as
mentioned, never entered the area, and none of the youths, including Kimbrough,
left the pod area.
In addition to the facts of this case and the apparent lack of
consideration by the juvenile court of the factors suggesting Kimbrough would have
been amenable, I am also deeply troubled by the juvenile court’s lack of
consideration of the wide array of dispositional options that were available to
Kimbrough. At the time of the amenability hearing, Kimbrough had five years to be
rehabilitated in the juvenile justice system — that, in my opinion, is a significant
period of time. It is especially troubling to me in this case because Kimbrough never
previously had a DYS placement and the opportunity to avail himself of those
services specifically aimed at juvenile offenders. He could have received those
services in the juvenile justice system and the public would have been protected at
the same time.
Because this was a discretionary bindover, the juvenile court was
able to look at Kimbrough as a whole, and not just the crimes and his age as would
be the case in a mandatory bindover. Based on what I have discussed in this dissent,
I believe that
[t]he juvenile justice system should look for reform that “aims to enable
juveniles to make a successful, prosocial transition to adulthood, while
holding them accountable for their wrongdoing, treating them fairly,
and protecting society from further offending.”
Morris, 47 Cap. U.L. Rev. at 669, quoting National Research Council, Reforming
Juvenile Justice: A Developmental Approach 89 (2013).
I do not believe the juvenile court looked at Kimbrough as a whole,
with his “care, protection, and mental and physical development” in mind, with the
purpose of protecting the “public interest and safety,” while holding him
“accountable for [his] actions” and restoring and rehabilitating him.
R.C. 2152.01(A). Thus, I believe the juvenile court abused its discretion in
transferring Kimbrough to the adult system. I therefore dissent.