from Allen County Common Pleas Court Juvenile Division Trial
Court No. 2012-JG-29515 Judgment Affirmed
A. Benavidez for Appellant
B. Thines for Appellee
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.
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.).
On March 23, 2012, M.M. appeared for arraignment and denied
the charges. (Doc. No. 18).
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
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).
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.
M.M. filed a motion for judicial release on December 1, 2015,
which the trial court denied on December 17, 2015. (Doc. Nos.
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).
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.
of Error No. I
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
of Error No. II
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
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.
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." 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).
"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
"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