[Cite as In re T.D.R., 2015-Ohio-3541.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                          LAKE COUNTY, OHIO


IN THE MATTER OF: T.D.R., JR.,                     :      OPINION
DELINQUENT CHILD.
                                                   :
                                                          CASE NO. 2014-L-109
                                                   :



Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2014 IN 01291.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Appellee – State of Ohio).

Charles R. Grieshammer, Lake County Public Defender, and Charles E. Langmack,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, T.D.R., an adjudicated delinquent child, appeals from the

judgment of the Lake County Court of Common Pleas, Juvenile Division, classifying him

as a serious youthful offender (“SYO”) and accordingly entering a dispositional sentence

pursuant to R.C. 2151.13. We affirm the trial court.

        {¶2}     The incident leading to the underlying charges occurred in Painesville,

Lake County, Ohio on July 10, 2014, at a Sunoco station on 265 East Erie Street.

Appellant entered the station with another male.         A separate customer was at the
counter conducting a transaction with the cashier. When that customer left the store,

the male accompanying appellant also left. Appellant then brandished a BB gun and

ordered the cashier to “give him [the] money. This is a robbery.” The cashier asked if

he was serious and, as he walked behind the counter, appellant stated he was. The

cashier told appellant to take the money; appellant did and left the store.   The cashier

subsequently called police and appellant was captured by police near the Sunoco

station.

       {¶3}   On July 11, 2014, appellant was charged by complaint with one count of

robbery, in violation of R.C. 2911.02(A)(2), and one count of obstruction of official

business, in violation of R.C. 2921.31; these charges constituted a second-degree

felony and a second-degree misdemeanor, respectively, if committed by an adult. The

complaint further alleged an offense of violence specification and an SYO specification

relating to the robbery charge.

       {¶4}   On September 11, 2014, appellant pleaded guilty to the charges and

specifications. After entry of the guilty pleas, the trial court submitted the matter to a

staffing team to prepare a recommendation for disposition/sentencing.

       {¶5}   On October 1, 2014, a disposition and sentencing hearing was held. For

the robbery count, the trial court sentenced appellant to a term of four years

imprisonment, with a three-year period of post-release control following his release. The

term of imprisonment was stayed pending successful completion of his juvenile

disposition. In its juvenile disposition, the court ordered appellant committed to the

Department of Youth Services (“DYS”) for a minimum of one year and a maximum

period not to exceed appellant’s 21st birthday. The disposition was stayed based upon




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appellant’s compliance with court orders and state laws. Appellant was also ordered to

serve 90 days in juvenile detention; the court stated appellant may be released from the

detention center for admission into a Community Correction Facility (“CCF”) with the

balance of his detention time suspended based upon compliance with probation rules,

court orders, and state laws.

       {¶6}      For the misdemeanor obstructing official business count, the trial court

ordered appellant to serve a 90-day commitment in the Lake County Juvenile Detention

Facility. This detention was ordered to be served immediately consecutive to the 90-

day detention relating to the robbery count. Appellant now appeals and assigns the

following as error:

       {¶7}      “The trial court erred to the prejudice of the delinquent child-appellant

when it classified him as a serious youthful offender and sentenced him to an adult term

of four (4) years in the Lorain Correctional Facility, a sentence that does not comport

with the factors a trial court must consider before imposing such a sentence as set forth

in ORC 2152.13(D)(2)(a).”

       {¶8}      Under his sole assignment of error, appellant argues the trial court erred

by imposing an SYO dispositional sentence after he entered a plea of guilty to an SYO

specification.    Appellant asserts the trial court failed to consider all relevant factors

before entering the SYO adult sentence. Thus, he maintains the trial court abused its

discretion when it imposed the SYO dispositional sentence. We do not agree.

       {¶9}      A juvenile charged as a potential SYO does not face a bindover to the

adult court of common pleas. Instead, the case remains under the juvenile court’s

jurisdiction. Under R.C. 2152.11(A), a juvenile who commits certain acts is eligible for “a




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more restrictive disposition,” i.e. an SYO disposition. State v. D.H., 120 Ohio St.3d 540,

2009-Ohio-9, ¶18. An SYO disposition “includes what is known as a blended sentence

-- a traditional juvenile disposition coupled with the imposition of a stayed adult

sentence.” Id., citing R.C. 2152.13.

      {¶10} Due to appellant's delinquency adjudication for robbery, a second-degree

felony, the imposition of the adult sentence was discretionary, not mandatory. See R.C.

2152.11(E)(1). R.C. 2152.13(D)(2)(a) controls a juvenile court's discretion to impose a

blended juvenile/adult sentence on a serious youthful offender and states:

      {¶11}    If a child is adjudicated a delinquent child for committing an act

               under circumstances that allow, but do not require, the juvenile

               court to impose on the child a serious youthful offender

               dispositional sentence under section 2152.11 of the Revised

               Code, all of the following apply:

      {¶12} (i) If the juvenile court on the record makes a finding that, given the

              nature and circumstances of the violation and the history of the

              child, the length of time, level of security, and types of programming

              and resources available in the juvenile system alone are not

              adequate to provide the juvenile court with a reasonable

              expectation that the purposes set forth in section 2152.01 of the

              Revised Code will be met, the juvenile court may impose upon the

              child a sentence available for the violation, as if the child were an

              adult, under Chapter 2929. of the Revised Code, except that the




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              juvenile court shall not impose on the child a sentence of death or

              life imprisonment without parole.

       {¶13} (ii) If a sentence is imposed under division (D)(2)(a)(i) of this

              section, the juvenile court also shall impose upon the child one or

              more traditional juvenile dispositions under sections 2152.16,

              2152.19, and 2152.20 and, if applicable, section 2152.17 of the

              Revised Code.

       {¶14} (iii) The juvenile court shall stay the adult portion of the serious

              youthful offender dispositional sentence pending the successful

              completion of the traditional juvenile dispositions imposed.

       {¶15} R.C. 2152.01, referenced in R.C. 2152.13(D)(2)(a), sets forth the

purposes for juvenile dispositions and provides, in relevant part:

       {¶16} (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. * * *

       {¶17} Accordingly, R.C. 2152.13(D)(2)(a) sets out a three-tiered process a court

must follow once a minor is adjudicated delinquent under circumstances that allow, but

do not require, a blended juvenile/adult SYO sentence; to wit: (1) the court must make

findings that, given the circumstances of the case, the juvenile system is not adequate

to meet the purposes in R.C. 2152.01; (2) once the court makes those findings, then it

may impose an adult sentence along with one or more traditional juvenile dispositions;




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and (3) after exercising its discretion, and imposing a blended juvenile/adult sentence,

the court must stay the adult portion pending successful completion of the traditional

juvenile disposition. See, e.g., State v. D.H., 169 Ohio App.3d 798, 2006-Ohio-6953,

¶44 (10th Dist.). “[H]ow the juvenile responds to that disposition will determine whether

the stay is lifted on the adult sentence.” D.H., 2009-Ohio-9, supra, at ¶30.

       {¶18} Although not directly at issue, it bears noting that the stay on the adult

portion of the blended sentence may not be lifted unless certain procedural safeguards

are satisfied. R.C. 2152.14(E) governs the circumstances under which a juvenile court

may invoke the adult portion of an SYO’s sentence. The statute requires the juvenile

court, upon motion of the prosecutor, to hold a hearing to determine whether the stay

should be lifted. R.C. 2152.14(A) – (D). After taking evidence, the court may invoke the

adult portion of the SYO sentence if it finds, 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. 2152.14(A) or

(B).” D.H., 2009-Ohio-9, supra, at ¶31.

       {¶19} With the foregoing framework in mind, we shall proceed to analyze the

various issues raised in this appeal. Initially, the state asserts appellant’s argument is

not ripe for review because, to the extent he successfully completes the juvenile

disposition, appellant will not actually serve the adult sentence. The state maintains

that the validity of appellant’s SYO sentence will be ripe only if he fails to meet the

requirements of the juvenile disposition.         The state therefore concludes, the adult

sentence, at this point, is merely hypothetical and does not rise to the level of an actual

controversy. We do not agree.




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       {¶20} R.C. 2152.13(D)(3) provides

       {¶21} A child upon whom a serious youthful offender dispositional

              sentence is imposed under division (D)(1) or (2) of this section has

              a right to appeal under division (A)(1), (3), (4), or (5) of section

              2953.08 of the Revised Code the adult portion of the serious

              youthful offender dispositional sentence when any of those

              divisions apply. The child may appeal the adult portion, and the

              court shall consider the appeal as if the adult portion were not

              stayed.

       {¶22} Appellant is, in effect, arguing his dispositional sentence, imposed as

provided under R.C. 2152.13(D)(2), is contrary to law, pursuant to R.C. 2953.08(A)(4).

The statutory framework allowing a court to impose a discretionary SYO adult sentence

requires a court to make specific findings. If, after entering its findings, the court deems

the adult sentence appropriate, it may impose the sentence. It must, however, stay that

sentence pending the juvenile offender’s compliance with the juvenile disposition

entered contemporaneously with the SYO sentence.            If a court fails to meet these

requirements, the imposition of the SYO sentence may be deemed contrary to law.

Pursuant to R.C. 2152.13(D)(3), therefore, appellant has the right to appeal the adult

portion of the sentence as if it were not stayed. Accordingly, the state’s argument

claiming appellant’s dispositional sentence is not ripe for review is unavailing.

       {¶23} With respect to appellant’s argument, he does not dispute that his criminal

conduct was subject to a discretionary SYO disposition and sentence.            Rather, he

contends the trial court failed to properly consider the necessary statutory factors before




                                             7
imposing that disposition. Appellant also appears to argue the trial court erred by

actually sentencing him to a four-year term of incarceration, despite his age and the

surrounding circumstances.

       {¶24} With respect to the latter issue, appellant misunderstands the portion of

the SYO dispositional order. As discussed above, the trial court did not send appellant

to prison. Instead, pursuant to the SYO specification, the court imposed that sentence,

but stayed the same pending successful completion of his time at CCF. To the extent

appellant’s argument is based upon a false premise, it is without merit.

       {¶25} Moreover, a review of the record reveals the juvenile court considered all

applicable factors in exercising its discretion to enter the blended juvenile/SYO adult

sentence. At the dispositional hearing, the trial court stated:

       {¶26} Well, young man, you’ve made choices in your life. Doesn’t seem

              that you have much respect for anybody.             You don’t have any

              respect for our community, you don’t have any respect for yourself.

              Says in this report that you told the psychologist that you’re not

              scared of anything, detention, the Court, or any authority.      You’re

              not afraid of the police, you’re not afraid of me. You don’t have any

              respect for authority. That doesn’t make you very responsible or

              accountable. * * *

       {¶27} * * *

       {¶28} The report states he’s been acting out in the community since

              elementary    school;   he’s   been   caught    lying,   stealing,   and

              manipulating; he steals food from stores and clothing and




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            electronics from other students at school. He shows little to no

            remorse for his actions. He steals from his mother and has taught

            his brothers to do so. His peer associations are older, criminally-

            involved and drug-dependent and dealing youth. He latches on to

            this older gang involved group for acceptance. It sounds to me like

            this young man needs help.

      {¶29} It is the disposition of the Court, [T.D.R.], that you are hereby

            committed to the legal custody of the Ohio Department of Youth

            Services for institutionalization in a secure facility for an indefinite

            term of one year and a maximum not to exceed your 21st birthday.

      {¶30} In addition, the Court has considered the factors set forth in the

            applicable provisions of the Ohio Revised Code; to wit: 2929.12,

            2929.13 and 2929.14 and other related sections, as well as

            [T.D.R.’s] criminal history here with the court, the seriousness of the

            act, the length of time we have in order to rehabilitate him and the

            types of programs that are available here and at the CCF.

      {¶31} I’ve also considered the Ohio youth assessment full inventory and

            the psychological evaluation as performed by the Court’s staff, the

            staffing team recommendation, and the victim’s statement at the

            prior hearing, the arguments of counsel and the lack of statement,

            even though given an opportunity, by the Juvenile.

      {¶32} After making the foregoing findings, the court proceeded to enter its

relative dispositional orders on the blended juvenile/SYO adult sentence.          It then




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informed appellant that both the adult sentence as well as the disposition ordering

appellant to DYS would be stayed as long as he successfully completed his time at the

CCF.

       {¶33} Given appellant’s actions, his apparent attitude toward authority, and

disregard for others in the community, the court could reasonably conclude the juvenile

system alone would be inadequate to meet the purposes of the administration of

juvenile justice, as set forth under R.C. 2152.01.    The findings made by the court on

record reflect this view.   We therefore hold the trial court complied with all necessary

statutory requirements for entering a discretionary blended juvenile/SYO adult

sentence.

       {¶34} Appellant’s assignment of error lacks merit.

       {¶35} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas, Juvenile Division, is affirmed.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                               _______________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶36} Appellant was committed to DYS for a minimum of one year, and a

maximum period not to exceed his twenty-first birthday.       He was given 90 days in

juvenile detention. He was further committed to a CCF. His DYS commitment was

stayed pending his successful treatment at the CCF. And, of course, his four year




                                            10
sentence to prison pursuant to the SYO dispositional sentence was stayed pending

behavior complying with the law.

       {¶37} Appellant was only 14 years old at the time of the disposition in this case.

While the crime he committed was serious indeed – robbery – he does not have a

lengthy history of delinquency. The state did not recommend any sentence on the SYO.

Most significant, when and if he completes his stay at the CCF, his remaining detention

time is suspended, and he is simply subject to community control.

       {¶38} When an SYO dispositional sentence is discretionary with the trial court,

R.C. 2152.13(D)(2)(a)(i) provides that the trial court must make a finding on the record

that, “given the nature and circumstances of the violation and the history of the child, the

length of time, level of security, and types of programming and resources available in

the juvenile system alone are not adequate to provide the juvenile court with a

reasonable expectation that the purposes set forth in section 2152.01 of the Revised

Code will be met,” before imposing the SYO sentence. As the majority notes, the trial

court made the finding in this case.      However, if appellant’s conduct was serious

enough to justify an SYO dispositional sentence, I cannot understand why the balance

of his juvenile disposition is just community control. We review imposition of an SYO

sentence under R.C. 2152.13(D)(2)(a)(i) for abuse of discretion. In re Wilson, 11th Dist.

Lake No. 2003-L-160, 2005-Ohio-3262, ¶8. A trial court abuses its discretion when its

judgment does not comport with reason, or the record. State v. Ferranto, 112 Ohio St.

667, 676-678 (1925).       Fundamentally, I find the blended sentence in this case

incongruous, because the finding made by the trial court that an SYO sentence is




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needed does not comport with the juvenile disposition made. I would find this an abuse

of discretion.

       {¶39} I find merit in the assignment of error, and respectfully dissent.




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