In re O.M.

[Cite as In re O.M., 2020-Ohio-5433.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE O.M. : No. 109381
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 25, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-18-110731
Appearances:
Fernando Mack and Eric L. Foster, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Thomas Rovito and Anthony T. Miranda,
Assistant Prosecuting Attorneys, for appellee.
PATRICIA ANN BLACKMON, P.J.:
O.M. appeals from the juvenile court’s imposition of the adult portion
of his serious youthful offender dispositional sentence and assigns the following
error for our review:
I. The trial court erred by making findings under R.C. 2151.14(E)
which were not clearly and convincingly supported by the evidence.
Having reviewed the record and pertinent law, we reverse the trial
court’s judgment, because there is not clear and convincing evidence in the record
that O.M. is unlikely to be rehabilitated during his remaining period of juvenile
detention. The apposite facts follow.
On October 25, 2018, the juvenile court adjudicated O.M. delinquent
for aggravated robbery and other associated offenses, along with firearm and serious
youthful offender specifications. O.M., whose date of birth is June 25, 2001, was 17
years old at the time of the adjudication. The court sentenced O.M. to three years at
the Ohio Department of Youth Services (“ODYS”) and stayed an eight-year prison
sentence as part of the serious youthful offender specification.
While at ODYS, O.M. was involved in over 100 behavioral incidents
including being found delinquent of two felonies. ODYS sent a request to the
prosecutor’s office to invoke the adult portion of O.M.’s sentence. In September
2019, the Cuyahoga County prosecutor’s office filed a motion to invoke the adult
portion of O.M.’s dispositional sentence. The juvenile court held a hearing, and on
December 2, 2019, invoked the eight-year prison term, finding clear and convincing
evidence that O.M. was “unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction.”
It is from this order that O.M. appeals.
Serious Youthful Offender Specification
The overriding purposes of detention in a juvenile facility are “to
provide for the care, protection, and mental and physical development of children
subject to this chapter, protect the public interest and safety, and hold the offender
accountable for the offender’s actions, restore the victim, and rehabilitate the
offender.” R.C. 2152.01(A). However, adult punishment may be reserved for serious
juvenile offenders who are at least 14 years old, engage in further serious
misconduct, and are not amenable to rehabilitation in the juvenile system.
The Ohio Supreme Court discussed the statutory scheme governing
serious youthful offender specifications in State v. D.H., 120 Ohio St.3d 540, 2009-
Ohio-9, 901 N.E.2d 209, ¶ 18:
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.
R.C. 2152.14(A) allows the state to file a motion to invoke the adult
portion of a juvenile sentence if:
there is reasonable cause to believe that either of the following
misconduct has occurred * * * after the person reached fourteen years
of age:
(a) The person committed an act that is a violation of the rules of the
institution and that could be charged as any felony or as a first degree
misdemeanor offense of violence if committed by an adult.
(b) The person has engaged in conduct that creates a substantial risk to
the safety or security of the institution, the community, or the victim.
Pursuant to R.C. 2152.14(E)(1), a juvenile court must make all of the
following findings by clear and convincing evidence prior to imposing the adult
portion of a serious youthful offender’s dispositional sentence:
(a) The person is serving the juvenile portion of a serious youthful
offender dispositional sentence.
(b) The person is at least fourteen years of age and has been admitted
to a department of youth services facility, or criminal charges are
pending against the person.
(c) The person engaged in the conduct or acts charged under * * * this
section, and the person’s conduct demonstrates that the person is
unlikely to be rehabilitated during the remaining period of juvenile
jurisdiction.
This court has held that a “juvenile must engage in separate conduct
detrimental to his own rehabilitation in the juvenile system before he may be
committed to an adult facility.” In re M.B., 8th Dist. Cuyahoga No. 106434, 2018-
Ohio-4334, ¶ 37.
It is undisputed that O.M. was at least 14 years old when he
committed the acts in question, and he was serving the juvenile portion of a serious
youthful offender dispositional sentence at ODYS. Furthermore, at the hearing on
the state’s motion, O.M.’s attorney conceded that O.M. engaged in conduct that
satisfies R.C. 2152.14(A)(2)(a) and (b). However, the parties dispute whether O.M.’s
conduct presented clear and convincing evidence that he was unlikely to be
rehabilitated.
The clear-and-convincing-evidence standard allowed by R.C.
2152.14(E)(1) is less rigorous [than the beyond-a-reasonable-doubt
standard], though stronger than a mere preponderance-of-the-
evidence standard. We have stated that clear and convincing evidence
is that “which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. The standard requires the judge to have a firm belief or
conviction about the facts adduced.
In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 20.
Hearing Testimony
The following testimony was presented at the hearing on the motion
to invoke the adult portion of O.M.’s dispositional sentence:
James Darnell testified that he is the Superintendent of Indian River
Correctional Facility (“Indian River”), the ODYS facility in which O.M. was placed
on November 7, 2018. According to Darnell, a Youth Behavioral Incident Report
(“YBIR”) is a “written reprimand that a youth would receive when they violate a
rule.” At the time the prosecutor filed the motion to invoke the adult portion of his
sentence, O.M. had been at Indian River for approximately ten months and had
received 107 YBIRs. O.M. received additional YBIRs between when the motion was
filed and the hearing was held, putting his total at over 120.
Darnell testified that O.M.’s YBIRs summarized “incidents that are
assault, fights, gang-related activity, assaults on staff, [and] charges that occurred as
a result of those assaults on staff.” Darnell noted that O.M. was involved in two
incidents of violence the weekend prior to the hearing and one incident of violence
the day before the hearing. Darnell testified that O.M.’s conduct has been “a
significant security risk and safety risk to the staff and the youth as well as disruptive
of the facility operations. * * * When those things happen, it in effect stops the
functioning of programming.”
Darnell further testified that during O.M.’s stay at Indian River, O.M.
completed various individual and group-therapy sessions as part of his treatment.
“He has completed substance abuse education, prep groups, anger, aggression and
violence. The [cognitive behavioral therapy] books one and two. I believe he’s
currently in * * * anger * * * regression therapy group.” O.M. earned his GED while
at Indian River and recently had been working in the cafeteria. Darnell testified that
O.M. “was not disrespectful to me or inappropriate towards me” during their
interactions at Indian River.
Darnell testified that there are four behavior levels that juveniles may
be placed in, with a Level One designation for the worst behavior and a Level Four
designation for the best behavior. Juveniles may move up and down the levels
depending on their conduct. During O.M.’s stay at Indian River, he was a Level One,
Level Two, and Level Three. At the time of the hearing, and because of the three
recent incidents, O.M. was on “Intervention Hearing” status, which happens when
a juvenile commits “a high level rule infraction” or “an act of violence.” According
to Darnell, “for two weeks you’re on a specific designated plan that’s restricted. He
would go to an intervention hearing and sanctions could be imposed at that time
from that.”
Darnell also testified about the “gang issues” at Indian River,
including the known gang Heartless Felons.
So we have a designated Gang Intervention Specialist * * * and he meets
with every youth upon their arrival and discusses * * * the gang issues
and the importance of making good decisions and he reviews their
history in the community. If there’s any gang issues there he
documents that also. He tracks and documents any gang activity
throughout the building.
Shawn Anders testified that he is the Security Threat Group
Coordinator at Indian River. His primary duty is to “track and monitor the gang
activity inside the facility.” Of the approximately 150 juveniles detained at Indian
River, about 100 identify as gang members. “A little bit around 50, high 40s, low
50s that are considered active. The other 40 to 50 are passive participants.”
Anders testified that “[c]urrently, [O.M.] is identified as a member of
the Heartless Felons.” The Indian River staff first noticed O.M. involved in gang
activity within a month of his arrival in November 2018. There was no indication
that O.M. had involvement with the Heartless Felons prior to his time at Indian
River.
According to Anders, coercion and threats are “a big part” of initiating
someone into gang activity. For example, a higher ranking gang member may say
to a lower ranking member, “you better go physically attack this individual
otherwise, this may happen to you * * *.” Asked if it would have been
“reasonable * * * to believe that [O.M.] received instruction to strike that individual
from a Heartless Felon,” Anders answered, “It could be. Yes, sir. * * * The attack
that he used was an unprovoked assault from behind, that is a tactic that the
Heartless Felons consistently use as a means of performing their will on other non-
Heartless Felon members.”
Prior to his most recent behavioral incidents, O.M. was a “passive”
member of the Heartless Felons, which means no “significant substantiated
Heartless Felon act[s]” within 90 days. O.M. was passive from approximately
August 2019, until the incidents that occurred just prior to the hearing on December
2, 2019. Anders testified that O.M. “had a desire to distance himself” from the gang.
Sometime in the “early summer, late spring” of 2019, he was moved to a unit “where
a lot of kids who had been leaving the gang stuff alone” were housed. He remained
there until the week before the hearing.
Anders testified that during O.M.’s time at Indian River, O.M. was
involved in 15 “Signal 5s,” which are when all available staff must respond to an
incident, and at least two “Signal 88s,” which are elevated responses to an
immediate emergency when all staff members must respond to an incident.
According to Anders, Indian River has “over 360 cameras in our facility that capture
activity [and] that record the daily events 24/7/365.”
Anders testified about a November 21, 2018 incident in which O.M.
assaulted another juvenile. Anders described what was recorded on surveillance
video: The victim “is pushing the yellow laundry cart, doing his job duties on the
unit and while doing so he was attacked by [O.M.] in an unprovoked assault which
he strikes him in the jaw.” According to Anders, O.M. punched this youth twice “very
hard,” and the youth “was unable to get up under his own power and the staff
member actually had to pick him up because his legs were wobbly.”
On December 26, 2018, O.M. was involved in another incident that
was recorded on a video camera located in the dayroom. O.M. “got up out of his seat
from the second row, walked over to the table in which [another youth] was sitting
at, they’re playing cards and then unprovoked attack from behind or from the side,
started punching him in the head.”
Dena Freeman testified that she is the Social Worker Supervisor at
Indian River, and she oversees the juveniles’ therapy programs. O.M. completed the
“substance abuse education, phase one and phase two. He is currently in anger
aggression and violence groups, he is also in anger regression therapy groups.” The
goal of the anger groups is “trying to teach him coping skills in how not to allow his
anger to cause him to hurt other people.” O.M. has participated in 15.2 hours of
anger and violence group therapy, an additional 15 hours of individual anger therapy
“for when he has assaulted people in the past,” and an additional three hours of
anger regression therapy.
According to Freeman, O.M. could have been involved in anger
aggression therapy for the remaining two years of his juvenile detention, because it
is an ongoing program. As for the anger regression therapy, O.M. completed 3 out
of a possible 18 sessions. Freeman testified that in her individual dealings with
O.M., he was always respectful to her and told her he “wanted to do good and be a
success story.”
Ronald Foster testified that he is a Unit Manager at Indian River.
According to Foster, on March 5, 2019, O.M. received a YBIT for “going in an
unauthorized area and * * * beginning to tear up the state property,” then assaulting
a staff member with a keyboard. Additionally, O.M. “started displaying some
behaviors that he was going to harm himself and I assisted with removing I believe
a sheet or something that he had tied around his neck.” O.M. “was facing me directly
and he spit in my face.” Foster left his radio in O.M.’s room, and O.M. “began to
broadcast over the system and make derogatory remarks.”
According to Foster, on January 27, 2019, O.M. “was instructed to
stop beating a gang cadence on his chair and his response is that he was a felon,
which is in reference to the Heartless Felons, three years strong and continued to do
the cadence.” On January 28, 2019, O.M. and another juvenile “made threats to be
disruptive and damage the unit if they were to receive a YBIR.” On January 29,
2019, O.M. “was physically restrained after he began to what they call flip the unit
where basically he was causing property damage by throwing chairs and having to
be placed in handcuffs. It also says that he lowered his shoulder and rammed into a
staff person.”
Foster further testified that O.M. “showed spurts of compliance, but
in my opinion, it was important for him to try to fit in with one of our prominent
[gang] groups, the Heartless Felons. So that caused for him to receive quite a bit of
YBIRs and have noncompliant behavior. * * * [T]here was a lot of disrespect and
disruptive behavior and acts of violence.” At one point, Foster told O.M. that he “had
matured and come a long way since when he first arrived.” A period of “maybe at
least two or three weeks” would pass without O.M. receiving a YBIR, and Foster
testified that this was “a good thing.” O.M. had “been moved to our least restrictive
type of units but then would lose that based off of being noncompliant.”
Jeffrey Leist testified that he is a General Activities Therapist at
Indian River. On March 5, 2019, O.M. was involved in a disruption with another
juvenile. O.M. ripped a keyboard out of the staff podium, and when staff tried to
intervene, O.M. hit Leist in the face with the keyboard. This incident was caught on
video. Nine to ten staff members responded to the incident. Leist had “bruising
along [his] jawline and it was sore for probably about two weeks afterward.” Leist
also testified about an incident that occurred the weekend before the hearing, which
was recorded on video. O.M. and “another youth began fighting and it escalated to
fighting with pool sticks and I was struck in the face by [O.M.]. And also in the
course of the fight the youth began spitting on each other and he spit on me as well.”
On cross-examination, Leist testified that this other youth initiated
the physical altercation with O.M. Leist further testified that it appeared that O.M.
was trying to strike the other youth with the pool stick when Leist got involved. This
resulted in O.M. striking Leist with the pool stick.
Juvenile Court’s Ruling
After the hearing, the juvenile court issued a journal entry finding that
“the allegations of the motion have been proven by clear and convincing evidence.”
As stated earlier in this opinion, the only factor regarding the serious youthful
offender specification that is disputed in this case is whether O.M. is unlikely to be
rehabilitated during his period of juvenile detention. The juvenile court did not
make any specific factual findings regarding this disputed factor.
Analysis
On appeal, O.M. argues that he was “coerced” or “forced” into gang
activity while at ODYS and that he “had undergone so little of the individualized
behavioral therapy offered by the facility.” Our review of the evidence focuses on
the disputed R.C. 2152.14(E)(1) factor of whether O.M. “is unlikely to be
rehabilitated during the remaining period of juvenile jurisdiction.”
At the time of the hearing, O.M. had served just over one year of his
three-year detention at ODYS. The state presented evidence of four behavioral
incidents committed by O.M. as clear and convincing evidence that O.M. was
unlikely to be rehabilitated. Evidence was also presented that O.M. became a
member of the Heartless Felons while at Indian River. According to O.M., he was
compelled by gang members to commit the incidents at issue, arguing that “[f]or
each incident, testimony was elicited showing that O.M. was never solely at fault.”
Additionally, evidence presented at the hearing shows that O.M.
completed just over 33 hours of group and individual therapy related to anger and
aggression issues, in addition to completing substance abuse education programs.
O.M. received his GED while at Indian River and was employed in the cafeteria.
We are aware that O.M. received a significant number of YBIRs
during his time at Indian River. However, during oral arguments, counsel for O.M.
noted that juveniles may receive YBIRs for a wide range of behavior, including non-
compliance, rule infractions, and aggressive conduct.
Public policy considerations weigh in favor of keeping juvenile
offenders in the juvenile system, rather than the adult prison system. For example,
[s]ubstantial scientific research during the last two decades has
discovered significant physiological differences between child and
adult brains. Citing this evidence, the United States Supreme Court
recognized that in comparison to adults, “juveniles have a ‘“lack of
maturity and an underdeveloped sense of responsibility.’’’’’ Graham v.
Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),
quoting Roper v. Simmons, 543 U.S. 551, 569-570, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005), quoting Johnson v. Texas, 509 U.S. 350, 367, 113
S.Ct. 2658, 125 L.Ed.2d 290 (1993). Juveniles ‘‘‘are more vulnerable or
susceptible to negative influences and outside pressures, including peer
pressure’; and their characters are ‘not as well formed.’’’ Id., quoting
Roper at 569-570. Amici curiae Juvenile Law Center and National
Juvenile Defender Center submitted significant documentation of
similar findings. In one article cited by the centers, Laurence Steinberg,
a doctor of psychology with a focus on adolescent development, noted
that “[a]dolescence is not just a time of tremendous change in the
brain’s structure. It is also a time of important changes in how the brain
works.” Steinberg, Should the Science of Adolescent Brain
Development Inform Public Policy?, 50 Ct.Rev. 70 (2014). Steinberg
made the following observations about structural changes that the
brain undergoes during adolescence:
First, over the course of adolescence and into early adulthood, there is
a strengthening of activity in brain systems involving self-regulation. *
**
Second, there are important changes in the way the brain responds to
rewards. * * *
A third change in brain function over the course of adolescence involves
increases in the simultaneous involvement of multiple brain regions in
response to arousing stimuli, such as pictures of angry or terrified faces.
Id. at 70-71. Steinberg concluded that “the consensus emerging from
recent research on the adolescent brain is that teenagers are not as
mature as adults in either brain structure or function.” Id. at 71.
Another article cited by the centers described evidence establishing
that “the connectivity and efficiency of [cellular] connections” in the
prefrontal cortex, the area of the brain responsible for executive
functions including short-term memory, attention, inhibitory control,
and decision making, “has been shown to continue developing
throughout adolescence and early adulthood.” Gruber & Yurgelun-
Todd, Neurobiology and the Law: A Role in Juvenile Justice?, 3 Ohio
St.J.Crim.L. 321, 324 (2006).
A juvenile’s brain is still developing until the juvenile is 18 years old and
is no longer subject to juvenile adjudication, and likely well after.
Recent studies suggest that juveniles are less able than adults to
regulate their responses to external stimuli and to judge the
consequences of their actions. I am not suggesting that this research
absolves juveniles from all responsibility for their bad acts. But that
research does suggest that even though our juvenile-justice system is
based on the theories of protection, treatment, and rehabilitation, it is
not properly designed to grapple with the realities of the not-yet-
developed brains of juveniles.
State v. Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138, ¶ 28-30
(O’Connor, C.J., dissenting).
Furthermore, the Ohio Supreme Court has held the following:
Juvenile courts are legislative creations, see In re Agler (1969), 19 Ohio
St.2d 70, 72, 48 O.O.2d 85, 249 N.E.2d 808, “rooted in social welfare
philosophy rather than in the corpus juris.” Kent v. United States
(1966), 383 U.S. 541, 554, 86 S. Ct. 1045, 16 L.Ed.2d 84. The juvenile
courts were premised on profoundly different assumptions and goals
than a criminal court, United States v. Johnson (C.A.D.C.1994), 307
U.S. App. D.C. 284, 28 F.3d 151, 157 (Wald, J., dissenting), and
eschewed traditional, objective criminal standards and retributive
notions of justice. Instead, a new civil adjudication scheme arose, with
a focus on the state’s role as parens patriae and the vision that the
courts would protect the wayward child from “evil influences,” “save”
him from criminal prosecution, and provide him social and
rehabilitative services. In re T.R. (1990), 52 Ohio St.3d 6, 15, 556
N.E.2d 439; Children’s Home of Marion Cty. v. Fetter (1914), 90 Ohio
St. 110, 127, 106 N.E. 761, 11 Ohio L. Rep. 518; Ex parte Januszewski
(C.C.Ohio, 1911), 196 F. 123, 127, 10 Ohio L. Rep. 151.
In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 66. See also In
re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 41 (“Juvenile
offenders are more capable of change than adult offenders”).
In the past two decades, the United States Supreme Court has
released decisions that essentially create a special status of juvenile offenders in light
of the Eighth Amendment’s prohibition on cruel and unusual punishment. In Miller
v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), the court
held that a “mandatory life without parole [prison sentence] for those under the age
of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’” In Graham v. Florida, 560 U.S. 48, 74, 130 S.Ct.
2011, 176 L.Ed.2d 825 (2010), the court held that “for a juvenile offender who did
not commit homicide the Eighth Amendment forbids the sentence of life without
parole.” In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),
the court held that the Eighth Amendment prohibits the imposition of the death
penalty on juvenile offenders.
In deciding this line of cases, the United States Supreme Court
acknowledged the “qualities that distinguish juveniles from adults * * *.1” Roper at
574. “It is difficult even for psychologists to differentiate between the juvenile
1For an in-depth review of policy trends regarding the juvenile justice system, see
Elizabeth S. Scott, SYMPOSIUM: “YOUTH MATTERS: MILLER V. ALABAMA AND THE
FUTURE OF JUVENILE SENTENCING”: Guest Editor: John F. Stinneford: “Children are
Different”: Constitutional Values and Justice Policy, 11 Ohio St. J. Crim. L. 71, 101 (Oct. 1,
2013) (“most juveniles are likely to desist from offending as they mature into adulthood —
unless the justice system pushes them in the direction of a criminal career”).
offender whose crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption.” Id. at 573. In Miller,
the court identified “three significant gaps between juveniles and adults.” Miller at
471.
First, children have a ‘“lack of maturity and an underdeveloped sense
of responsibility,’” leading to recklessness, impulsivity, and heedless
risk-taking. Roper, 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1.
Second, children “are more vulnerable * * * to negative influences and
outside pressures,” including from their family and peers; they have
limited “contro[l] over their own environment” and lack the ability to
extricate themselves from horrific, crime-producing settings. Ibid. And
third, a child’s character is not as “well formed” as an adult’s; his traits
are “less fixed” and his actions less likely to be “evidence of
irretrievabl[e] deprav[ity].” Id., at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1.
Miller at 471.
These same policy arguments that the nation’s highest court has
relied on to chip away at harsh sentences for juvenile offenders can be applied to
taking a more pragmatic approach to Ohio’s serious youthful offender statute. We
are aware that this statute passed constitutional muster in In re J.V., 134 Ohio St.3d
1, 2012-Ohio-4961, 979 N.E.2d 1203. But see Emily L. Barth, Comment: Blurring
the Lines: When the “Best Interests of the Child” Fall to the Wayside. An analysis
of Ohio’s Serious Youthful Offender Statute, 79 U. Cin. L. Rev. 323, 344 (Fall, 2010)
(“[T]he punitive nature of the SYO statute, especially the imposition of adult prison
time, has destroyed any vestiges of the rehabilitative goals of the juvenile court
system. Without the essential procedural due process right of a jury trial, juveniles
sentenced under the discretionary SYO statute become vulnerable to arbitrary and
unnecessary punishment.”).
This does not mean, however, that the application of this statute
cannot be challenged on a case-by-case basis. In the case at hand, O.M.’s conduct,
which we do not condone, did not involve the most serious offenses, such as murder
or rape. Evidence in the record shows that O.M. was influenced by his gang
membership, and there is nothing to suggest that O.M. was involved in a gang prior
to his time at ODYS. O.M. completed approximately one-third of his juvenile
sentence at the time the state filed its motion to invoke the adult portion of his
sentence, and O.M. had not yet completed most of the therapy programs offered by
ODYS. In short, there is not clear and convincing evidence that O.M. was unlikely
to be rehabilitated, and we find that the invocation of his adult sentence was
premature. Accordingly, O.M.’s sole assigned error is sustained.
Judgment reversed and case remanded to the juvenile court for
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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, juvenile division, 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.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
MARY EILEEN KILBANE, J., CONCUR