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In re D.J.

Court of Appeals of Ohio, Ninth District, Summit

February 14, 2018

IN RE: D.J.

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DL 1111 2532

          CHARLYN BOHLAND, Assistant State Public Defender, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          HENSAL, PRESIDING JUDGE.

         {¶1} D.J. appeals judgments of the Summit County Court of Common Pleas, Juvenile Division, that invoked the adult portion of his serious youthful offender dispositional sentence and sentenced him to life imprisonment with the possibility of parole after 25 years. For the following reasons, this Court affirms.

         I.

         {¶2} When D.J. was 15, he anally raped his 3-year-old sister, which caused injuries that resulted in her death. The juvenile court adjudicated him guilty of rape and felony murder and designated him a serious youthful offender. It committed him to the Ohio Department of Youth Services (DYS) and stayed his adult sentence of life imprisonment with the possibility of parole after 25 years. D.J. appealed his adjudication. He also petitioned for post-conviction relief.

         {¶3} D.J. behaved well during his commitment. He completed high school, took college classes, began an apprenticeship, and even helped tutor others. In light of his ongoing legal proceedings, however, he declined to enroll in sex offender treatment. Eventually, he voluntarily dismissed his appeal and withdrew his petition.

         {¶4} Following the end of D.J.'s appeal and petition, the juvenile court wrote that his sex offender treatment would begin shortly. D.J. did not decide to enter the program, however, until nine months before he was going to turn 21. Despite attending and participating in the first part of the program, D.J. did not meet its goals because he could not identify the triggers for his conduct. He, therefore, could not continue into the second part of the program, which helps participants develop strategies to manage their triggers.

         {¶5} Approximately 50 days before D.J.'s twenty-first birthday, the State moved for the juvenile court to invoke the adult portion of D.J.'s sentence. Following an evidentiary hearing, the juvenile court granted its motion, finding that D.J., by failing to complete sex offender treatment, engaged in conduct that poses a substantial risk to the safety of the community. The court also found that he could not be rehabilitated before turning 21. It subsequently imposed D.J.'s adult sentence of life imprisonment with the opportunity for parole after 25 years. D.J. has appealed, assigning five errors.

         II.

         ASSIGNMENT OF ERROR I

         THE STATE CANNOT INITIATE THE REQUEST TO INVOKE THE ADULT PORTION OF A CHILD'S SYO WHEN THE CHILD IS IN DYS'S INSTITUTIONAL CUSTODY, IN VIOLATION OF R.C. 2152.14(A).

         {¶6} D.J. argues that the State's motion to invoke was improper under Revised Code Section 2152.14(A). That section provides, in part, that "[t]he director of youth services may request the prosecuting attorney of the county in which is located the juvenile court that imposed a serious youthful offender dispositional sentence * * * to file a motion with that juvenile court to invoke the adult portion of the dispositional sentence * * *." According to D.J., under the statute, only the director of DYS can initiate the request to invoke the adult part of the dispositional sentence for a serious youthful offender. Here, however, the prosecutor sent a letter to DYS, requesting that it join in a motion to invoke. D.J. contends that DYS's staff was actually preparing him for release into the community until the prosecutor interfered in the process.

         {¶7} Section 2152.14 does not provide any guidance for how the director of DYS should decide whether to request that the prosecuting attorney move for the juvenile court to invoke the adult part of a dispositional sentence. The statute's only requirements are that the juvenile be at least 14 years old, that the juvenile be in the custody of or has escaped custody of DYS, and that the juvenile be serving the juvenile part of a serious youthful offender dispositional sentence. R.C. 2152.14(A)(2). D.J. has not pointed to any language in Section 2152.14 that prohibits the ...


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