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In re M.M.

Court of Appeals of Ohio, Third District, Allen

March 26, 2018

IN RE: M.M.

          Appeal from Allen County Common Pleas Court Juvenile Division Trial Court No. 2012-JG-29515 Judgment Affirmed

          Joseph A. Benavidez for Appellant

          Kyle B. Thines for Appellee

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant, M.M., appeals the November 13, 2017 judgment entry of the Allen County Court of Common Pleas, Juvenile Division, lifting the stay of the adult portion of his serious-youthful-offender-dispositional sentence. For the reasons that follow, we affirm.

         {¶2} On March 14, 2012, the Allen County Grand Jury indicted M.M. on four counts, including: Count One of aggravated burglary in violation of R.C. 2911.11(A)(1), a first-degree felony if committed by an adult, Count Two of abduction in violation of R.C. 2905.02(A)(1), a third-degree felony if committed by an adult, Count Three of rape in violation of R.C. 2907.02(A)(2), a first-degree felony if committed by an adult, and Count Four of aggravated robbery in violation of R.C. 2911.01(A)(3), a first-degree felony if committed by an adult. (Doc. No. 1). Each count alleged that M.M., being 13 years old at the time of the offenses, was subject to a serious-youthful-offender designation. (Id.).

         {¶3} On March 23, 2012, M.M. appeared for arraignment and denied the charges. (Doc. No. 18).

         {¶4} On October 24, 2012, M.M. withdrew his denials, admitted the charges, and pleaded delinquent, under a written plea agreement, to Counts Three and Four. (Doc. No. 57). In exchange for his change of pleas, the State agreed to dismiss Counts One and Two. (Doc. No. 59). The trial court accepted M.M.'s delinquency pleas, found him to be a delinquent child by reason of his admission to Counts Three and Four, dismissed Counts One and Two, and ordered a pre-dispositional report. (Id.).

         {¶5} After a hearing on November 13, 2012, the trial court found M.M. to be a serious youthful offender and imposed a blended sentence. (Doc. No. 67). The trial court committed M.M. to the legal care and custody of the Ohio Department of Youth Services ("DYS") for a minimum period of three years of commitment as to Count Three and a minimum period of three years of commitment as to Count Four and ordered that M.M. serve the terms consecutively for an aggregate minimum period of commitment of six years not to exceed M.M.'s 21st birthday. (Id.). As for the adult sentence, the trial court sentenced M.M. to ten years of incarceration as to Count Three and five years of incarceration as to Count Four and ordered that M.M. serve the terms consecutively for an aggregate sentence of 15 years. (Id.). The trial court stayed under R.C. 2152.13(D)(2)(a)(iii) the adult portion of the sentence pending M.M.'s successful completion of the juvenile disposition. (Id.). The trial court filed an amended judgment entry of disposition on December 11, 2012 "to add the provision that the Serious Youthful Offender is to complete sex offender treatment prior to his release from the secure custody of the Ohio Department of Youth Services." (Doc. No. 72).

         {¶6} On December 12, 2012, M.M. filed a notice of appeal. (Doc. No. 73). (See also Doc. No. 77). According to this court's records, M.M. voluntarily dismissed his appeal.

         {¶7} M.M. filed a motion for judicial release on December 1, 2015, which the trial court denied on December 17, 2015. (Doc. Nos. 89, 90).

         {¶8} At the request of the director of DYS, the State filed on June 12, 2017 a motion to invoke the adult portion of M.M.'s serious-youthful-offender-dispositional sentence. (Doc. No. 91); (State's Ex. 2). After a hearing on October 18, 2017, the trial court invoked M.M.'s adult sentence after making the necessary findings under R.C. 2152.14. (Doc. No. 119). The trial court modified the adult sentence imposed in its December 11, 2012 judgment entry of disposition and sentenced M.M. to ten years of incarceration as to Count Three and five years of incarceration as to Count Four and ordered that M.M. serve the terms concurrently for an aggregate sentence of ten years. (Id.). The trial court ordered that M.M. be transferred to the Ohio Department of Rehabilitation and Correction. (Id.). On November 13, 2017, the trial court filed an amended judgment entry of sentence correcting a typographical error. (Doc. No. 120).

         {¶9} On November 15, 2017, M.M. filed a notice of appeal. (Doc. No. 121). He raises two assignments of error for our review, which we will address together.

         Assignment of Error No. I

         The Trial Court Erred in Finding by Clear and Convincing Evidence that the Appellant's Conduct While in Institutional Care Has Created a Risk to the Safety and Security of the Institution

         Assignment of Error No. II

         The Trial Court Erred in Finding by Clear and Convincing Evidence that the Appellant's Conduct Demonstrates that He is Unlikely to be Rehabilitated During the Remaining Period of Juvenile Jurisdiction

         {¶10} In his assignments of error, M.M. argues that the trial court erred by imposing the adult portion of his serious-youthful-offender-dispositional sentence. In particular, he argues that there is not clear and convincing evidence supporting the trial court's conclusions that M.M. engaged in conduct that created a substantial risk to the safety or security of the institution and that M.M.'s conduct demonstrates that he is unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.

         {¶11} As an initial matter, we must address the standard of review applied to a trial court's imposition of the adult portion of a serious-youthful-offender-dispositional sentence. The Supreme Court of Ohio has stated that "the invocation proceeding [is] similar to the proceedings incident to a criminal court's imposition of a suspended sentence."[1] In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, ¶ 16. Ohio courts of appeal review the imposition of a suspended sentence for an abuse of discretion. See, e.g., State v. Walton, 9th Dist. Lorain No. 09CA009588, 2009-Ohio-6703, ¶ 13. See State v. Michael, 3d Dist. Henry No. 7-13-05, 2014-Ohio-754, ¶ 21. As such, we review a trial court's decision to impose the adult portion of a serious-youthful-offender sentence for an abuse of discretion. See In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, ¶ 82 (noting that the juvenile court "has the discretion not to invoke the adult sentence" under Ohio's serious-youthful-offender scheme); In re Raheem L., 1st Dist. Hamilton C-100608, 2013-Ohio-2423, ¶ 17 (Cunningham, P.J., dissenting) (noting that "the juvenile court has the discretion to avoid invoking the adult penalty"). An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

         {¶12} "A serious-youthful-offender disposition consists of a 'blended' sentence: a traditional juvenile disposition and a stayed adult sentence." In re D.H., 120 Ohio St.3d 540, 2009-Ohio-9, ¶ 2, citing R.C. 2152.13(D)(2). "Any adult sentence that the trial court imposes through R.C. 2152.13(D)(2)(a)(i) is only a potential sentence-it is stayed pursuant to R.C. 2152. 13(D)(2)(a)(iii) 'pending the successful completion of the traditional juvenile dispositions imposed.'" Id. at ¶ 30, quoting R.C. 2512. 13(D)(2)(a)(iii). "R.C. 2152.13(D)(2)(a)(ii) requires the court to impose a juvenile disposition when it imposes an adult sentence; how the juvenile responds to that disposition will determine whether the stay is lifted on the adult sentence." Id.

         {¶13} "The court may enforce the adult portion of the sentence at a later time if the juvenile commits certain acts that indicate that the juvenile disposition has been unsuccessful in rehabilitating him." Id. at ¶ 2, citing R.C. 2152.14. "R.C. 2152.14(E) governs under what instances a juvenile court may invoke the adult portion of a serious youthful offender's sentence for failure to successfully complete the traditional juvenile disposition." Id. at ¶ 31. "The statute requires a finding by clear and convincing evidence that the juvenile is 'unlikely to be rehabilitated during the remaining period of juvenile jurisdiction' and that the juvenile has engaged in further bad conduct pursuant to R.C. 2512.14(A) or (B)." Id., quoting R.C. 2152.14(E). R.C. 2152.14(E) provides, in relevant part:

(E) (1) The juvenile court may invoke the adult portion of a person's serious youthful offender dispositional sentence if the juvenile court finds all of the following on the record by clear and convincing evidence:
(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 ...

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