[Cite as In re M.B., 2018-Ohio-4334.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 106434




                                          IN RE: M.B.
                                         A Minor Child




                                         JUDGMENT:
                                          AFFIRMED




                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                         Juvenile Division
                                     Case No. DL-15111599


        BEFORE: E.T. Gallagher, P.J., Stewart, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 25, 2018
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

BY: Timothy Hackett
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

James J. Hofelich
614 West Superior Avenue, Suite 1310
Cleveland Ohio 44113

Christopher R. Lenehan
Christopher R. Lenehan Inc., Co.
2035 Crocker Road, Suite 104
Westlake, Ohio 44145

William T. McGinty
McGinty, Hilow & Spellacy Co., L.P.A.
614 West Superior Avenue, Suite 1300
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Chadwick P. Cleveland
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




(continued)
Also Listed

A.B. (Mother), pro se
2350 East 61st Street
Cleveland, Ohio 44104

Guardians Ad Litem

Amanda J. Hawkins
1801 Euclid Avenue #A089
Cleveland, Ohio 44115

Thomas Kozel
P.O. Box 534
North Olmsted, Ohio 44070
ON RECONSIDERATION1




EILEEN T. GALLAGHER, P.J.:

        {¶1} Appellant, M.B., appeals from the judgment of the Cuyahoga County Court of

Common Pleas, Juvenile Division, granting the state’s motion to invoke the adult portion of

M.B.’s serious youth offender sentence pursuant to R.C. 2152.14(A).                              He raises five

assignments of error for review:

        1. The juvenile court erred when it entertained an objection from the Ohio
        Department of Youth Services (“ODYS”) during cross-examination, because
        ODYS was not a proper party to the proceeding, in violation of Juv.R. 2(Y),
        Civ.R. 24, and the Due Process Clause of the Fifth and Fourteenth Amendments
        to the U.S. Constitution, and Article I, Section 16 of the Ohio Constitution.

        2. The juvenile court erred when it sustained ODYS’s improper objection
        because a testifying witness’ prior conversation with her employer’s attorney is
        not a privileged communication under R.C. 2317.02(A).

1
   The original decision in this appeal, In re: M.B., 8th Dist. Cuyahoga No. 106434, 2018-Ohio-3311, released on
August 16, 2018, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in
this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
       3. The juvenile court violated M.B.’s constitutional rights to confrontation and
       cross-examination, in violation of the Sixth and Fourteenth Amendments to the
       U.S. Constitution, and Article I, Section 10 of the Ohio Constitution.

       4. The juvenile court erred when it determined, in the absence of clear and
       convincing evidence, that M.B. was unlikely to be rehabilitated during the
       remainder of the court’s jurisdiction.

       5. M.B. was denied his constitutional right to the effective assistance of counsel,
       in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution,
       and Article I, Section 10 of the Ohio Constitution.
       {¶2} After careful review of the record and relevant case law, we affirm the juvenile

court’s judgment.

                                     I. Procedural History

       {¶3} On August 20, 2015, the state filed a complaint, alleging that then 15-year-old M.B.

was a delinquent child for committing three counts of aggravated robbery in violation of R.C.

2911.01(A)(1); three counts of kidnapping in violation of R.C. 2905.01(A)(2); and three counts

of robbery in violation of R.C. 2911.02(A)(2). Each count carried one- and three-year firearm

specifications.

       {¶4} On August 25, 2015, the state filed a motion to relinquish jurisdiction, requesting

the juvenile court to transfer M.B.’s case to the general division of the common pleas court.

Following an amenability hearing, the trial court determined that there was sufficient time to

rehabilitate M.B. within the juvenile system.   Accordingly, the trial court denied the state’s

motion to relinquish jurisdiction.

       {¶5} On April 23, 2016, pursuant to a plea agreement, M.B. voluntarily admitted and

pleaded delinquent to single counts of aggravated robbery and kidnapping, with three-year

firearm specifications.   At the state’s request, the court designated M.B. a serious youth

offender (“SYO”).     Following the disposition hearing, the juvenile court committed M.B. to
ODYS for a minimum period of three years and a maximum period not to exceed his 21st

birthday.   The juvenile court also imposed a six-year, adult prison term on the kidnapping

offense, pursuant to the SYO finding.       The juvenile court stayed the adult portion of the

sentence pending M.B.’s successful completion of the juvenile disposition.

       {¶6} On August 7, 2017, the state filed a motion to invoke the adult portion of M.B.’s

SYO dispositional sentence.      The motion alleged that while M.B. was in ODYS, he was

involved in several incidents of misconduct that could amount to a felony or first-degree

misdemeanor offense; that M.B. would be charged separately as a result of this conduct; and that

the combination of the misconduct provides the requisite cause to invoke the adult portion of

M.B.’s SYO dispositional sentence.

       {¶7} On September 21, 2017, the juvenile court held an invocation hearing.            At the

hearing, the state introduced a number of incident reports and video exhibits depicting M.B.’s

misbehavior at ODYS. In addition, the state elicited the following relevant testimony from

ODYS staff members.

       {¶8} ODYS Chief of Facility Operations, Amy Ast, testified that she handles security

concerns at the ODYS facilities. Regarding the incidents supporting the state’s motion to

invoke M.B.’s adult sentence, Ast provided ample testimony regarding M.B.’s violent and

disruptive behavior during his commitment at the Cuyahoga Hills Correctional Facility.           In

particular, Ast described incidents that occurred on February 10, 2017 and September 19, 2017

where M.B. assaulted ODYS staff members.        She further described incidents on April 10, 2017,

August 6, 2017, September 1, 2017, September 11, 2017, and September 14, 2017, where M.B.

participated in, or initiated, fights with other youth offenders.   Ast also testified that on April

24, 2017, M.B. started a fire in a facility recreation room. As a result of this incident, M.B. was
charged with aggravated arson.

       {¶9} In addition to M.B.’s “assaultive behavior,” Ast testified that M.B. “accumulated

quite a few [Youth Behavior Incident Reports (“YBIRs”)]” involving “offenses that were not as

serious, but very disruptive to the facility.”     The YBIRs submitted to the court reflect

approximately 19 instances of misbehavior by M.B., including rule violations for refusing to

follow staff instruction, refusing to attend required programing, threatening conduct, complicity,

security threat group activity, misusing or abusing property, out of area, offensive conduct,

sexual harassment toward staff, sexual misconduct, and creating a health and safety hazard.

       {¶10} Dr. Jennifer Alpert testified that she works for ODYS as a psychology supervisor.

She explained that she reviews youth’s records coming into the facility, assigns mental health

cases to providers, and oversees mental health providers in the ODYS facility. While Dr.

Alpert did not meet with M.B. in a clinical setting, she testified that M.B. had multiple services

made available to him at ODYS, including substance abuse orientation, cognitive behavioral

therapy, anger management, gang curriculum, music therapy, and a substance abuse program.

However, Dr. Alpert testified that M.B. did not consistently participate in school or in the

programs made available to him by ODYS. Accordingly, Dr. Alpert agreed that “[M.B.] has not

taken steps to fully engage into gaining benefits from the programs.”

       {¶11} When asked whether M.B. was likely to be rehabilitated, Dr. Alpert testified that

she was “guarded at best with [her] opinion as far as what more [ODYS] ha[s] to offer [M.B.] to

help him.”    She explained that all available ODYS resources and programing have been

provided to M.B. and that the programing available at Cuyahoga Hills is the same programing

available at all ODYS facilities.

       {¶12} During the course of her testimony, defense counsel asked Dr. Alpert if she spoke
with counsel for ODYS prior to the invocation hearing.      When Dr. Alpert confirmed that she

had, defense counsel asked her what the “conversation with [ODYS counsel] was about?” At

that time, ODYS counsel raised an objection, indicating to the court that there were privilege

concerns regarding his communications with Dr. Alpert. After careful consideration, the court

sustained the objection. However, the trial court permitted defense counsel to question Dr.

Alpert regarding whether she communicated with ODYS counsel and other ODYS employees

prior to the hearing.    Without disclosing the substance of the communications, Dr. Alpert

confirmed that she had participated in email and phone conversations with ODYS counsel and

other ODYS employees prior to the hearing.

        {¶13} Following defense counsel’s re-cross-examination, the court addressed Dr. Alpert

in the effort to obtain clarity regarding the nature of Dr. Alpert’s conversations with ODYS

counsel before the invocation hearing:

        THE COURT: I think the answer that I would like to know is when you walked
        into the courtroom being that you’re the psychologist, did you have any
        preconceived idea that [M.B.] should be transferred to the General Division and
        out of ODYS?

        DR. ALPERT: No.

        {¶14} Bennie Kelly, the superintendent of the Cuyahoga Hills facility, testified that he

became aware of M.B. following his involvement in assaults with other youth offenders at the

facility.   In May 2017, Kelly met with all the serious youth offenders, including M.B., and

informed them that he would not tolerate further violence at Cuyahoga Hills.      Kelly expressed

that he was very concerned with “the level of violence that [has] taken place at the facility,” and

that M.B. “has played a major part in that role.”

        {¶15} Torri Williams testified that she is a ODYS parole officer and has supervised M.B.
at ODYS since he was placed at the Cuyahoga Hills facility. Williams testified that M.B. has

not consistently complied with his juvenile court orders. However, she stated that, to the best of

her recollection, M.B. has participated in schooling “at times” and completed the alcohol and

drug portion of his court-ordered programing.

       {¶16} Before issuing its judgment, the court provided Amanda Hawkins, M.B.’s guardian

ad litem, with the opportunity to be heard. Hawkins opined that sending M.B. to adult prison

would be detrimental to his future and would seal his fate in the criminal system.       She stated

that she believed M.B. “does have hope for a future,” and that sending him to a different juvenile

facility may help M.B. distance himself from his gang affiliation.

       {¶17} On September 22, 2017, the juvenile court issued a journal entry granting the

state’s motion to invoke the adult portion of M.B.’s SYO dispositional sentence and ordered that

M.B. be transferred to an adult prison to serve his six-year sentence. In a journal entry dated

September 25, 2017, the trial court found, in relevant part:

       The Court finds by clear and convincing evidence that the youth is at least
       fourteen years of age, is serving the juvenile portion of a Serious Youthful
       Offender dispositional sentence, and is in the institutional custody of or escapee
       from the Department of Youth Services; and that there is reasonable cause to
       believe that after the youth reached fourteen years of age: the youth committed an
       act that is a violation of the rules of the institution and that could be charged as a
       felony or as a first-degree misdemeanor offense of violence if committed by an
       adult and engaged in conduct that created a substantial risk to the safety or
       security of the institution, the community, or the victim.

       The Court further finds by clear and convincing evidence that the youth has been
       admitted to a Department of Youth Services facility or criminal charges are
       pending against the youth, and the youth’s conduct demonstrates that the youth is
       unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.

       {¶18} M.B. now appeals from the juvenile court’s judgment.

                                     II.   Law and Analysis
                               A. Scope of Dr. Alpert’s Testimomy

       {¶19} In his first assignment of error, M.B. argues the juvenile court erred when it

entertained an objection from ODYS during the cross-examination of Dr. Alpert. In his second

assignment of error, M.B. argues the juvenile court erred when it determined that Dr. Alpert’s

communications with ODYS counsel were privileged under R.C. 2317.02(A). We address

these assigned errors together for clarity.

       {¶20} Relevant to the arguments posed in M.B.’s first and second assignments of error,

the following exchange occurred during the invocation hearing:

       DEFENSE COUNSEL: Okay. Yesterday, and did you talk to [ODYS counsel]
       before you came [here] to testify?

       DR. ALPERT: I did.

       DEFENSE COUNSEL: Okay. And what was your conversation with [ODYS
       counsel] about?

       PROSECUTOR:          Objection.

       THE COURT: It’s way outside of the scope of the Court’s questions, I would
       argue.

       THE COURT: I think I’m going to allow a little more leeway.   Overruled.

       ODYS COUNSEL: Your Honor, there are privilege concerns regarding
       communication.

       TRIAL COURT: That I will sustain.

       DEFENSE COUNSEL: What privileged communication?

       TRIAL COURT:         Well, it’s interesting.

       DEFENSE COUNSEL: He’s not her lawyer.

       TRIAL COURT: Well, she is an ODYS employee. Is she your client?

       ODYS COUNSEL: She’s the employee of the Agency, acting in the Agency’s
       capacity. Yes, your Honor.

       DEFENSE COUNSEL: [Dr. Alpert], when you spoke to [ODYS counsel]
       yesturday, was it your understanding you had an attorney-client privilege with him
       or were you talking to his as some type of supervisor [at ODYS]?

       DR. ALPERT: I didn’t give that a thought.

       DEFENSE COUNSEL: Okay. Well, the nature of the conversation was about
       M.B. It wasn’t about anything that you did or didn’t do that you thought you
       might have some type of problem that you needed to talk to a lawyer from
       [ODYS], is that correct?

       PROSECUTOR: Objection.          May we approach, your Honor?

       TRIAL COURT: Yes.

       {¶21} Following an off-the-record conversation, the trial court determined that Dr. Alpert

was not required to answer questions regarding the substance of her conversations with ODYS

counsel prior to the hearing.    However, the court permitted defense counsel to question Dr.

Alpert regarding how she received the subpoena for the hearing and whether she communicated

with ODYS counsel and other ODYS employees prior to the hearing.

       {¶22} On appeal, M.B. argues that counsel for ODYS was not a proper party to the

invocation proceedings and, therefore, the juvenile court did not have the authority to entertain an

objection raised by a nonparty pursuant to Juv.R. 2(Y). Alternatively, M.B. contends that

“aside from standing,” the juvenile court erred when it sustained ODYS’s improper objection

because a testifying witness’ prior conversation with her employer’s attorney is not a privileged

communication under R.C. 2317.02(A).

       {¶23} Initially, we note that the Ohio Rules of Evidence are not applicable to invocation

proceedings. In In re A.A.W., 8th Dist. Cuyahoga No. 101580, 2015-Ohio-1297, this court

explained as follows:
        Evid.R. 101(A) provides, in part, that the evidence rules do not apply to
        miscellaneous criminal proceedings such as “[p]roceedings for extradition or
        rendition of fugitives; sentencing; granting or revoking probation; proceedings
        with respect to community control sanctions; issuance of warrants for arrest;
        criminal summonses and search warrants; and proceedings with respect to release
        on bail or otherwise.”

        In In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 16, 20, the
        Ohio Supreme Court stated that an invocation proceeding is not the same as a
        delinquency proceeding. Rather, an invocation proceeding is analogous to a
        “proceeding incident to a criminal court’s imposition of a suspended sentence.”
        Id. at ¶ 16. At an invocation hearing, the juvenile court may not increase the
        juvenile offender’s sentence; it merely decides whether to invoke the adult portion
        of the juvenile’s sentence that was suspended. Id. at ¶ 8; State v. D.H., 120 Ohio
        St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 30. Although Evid.R. 101(A) does
        not specifically include the term “invocation hearings” on its list of exemptions,
        because they are akin to sentencing proceedings, probation violation hearings, and
        “proceedings with respect to release,” Evid.R. 101(A) exempts them from strict
        application of the Ohio Evidence Rules.
        Additionally, R.C. 2151.35(B)(2), which governs juvenile court hearing
        procedures, specifically states that “[t]he court may admit any evidence that is
        material and relevant, including, but not limited to, hearsay, opinion, and
        documentary evidence.” See also Juv.R. 34(B)(2); In re T.J., 8th Dist. Cuyahoga
        Nos. 99877 and 99878, 2013-Ohio-5434. Thus, the only restriction on the
        admission of evidence during an invocation proceeding is that the evidence must
        be “material and relevant.” Id.

Id. at ¶ 11-13.

        {¶24} In this case, evidence relating to whether Dr. Alpert’s testimony and opinions were

biased as a result of her conversations with ODYS counsel prior to the invocation hearing was

certainly “material and relevant.”      However, after careful consideration of Dr. Alpert’s

testimony in conjunction with the other state witnesses, we find the challenged evidentiary ruling

did not impact or influence the trial court’s judgment.       From this record, it is evident that

defense counsel was attempting to question Dr. Alpert about her conversations with ODYS

counsel in an effort to explore her “potential bias and ulterior motives.”

        {¶25} While the trial court sustained ODYS counsel’s objection on grounds of privilege,
the trial court clearly understood the nature of defense counsel’s line of questioning. Thus, the

trial court addressed this issue on its own during the court’s questioning of Dr. Alpert:

       THE COURT: I think the answer that I would like to know is when you walked
       into the courtroom being that you’re the psychologist, did you have a
       preconceived idea that [M.B.] should be transferred to the General Division and
       out of ODYS.

       DR. ALPERT: No.
       {¶26} Based on the trial court’s direct questioning, issues involving Dr. Alpert’s potential

bias or ulterior motives were addressed and ultimately refuted by Dr. Alpert during the

invocation hearing.   The record reflects that while she spoke with ODYS counsel and other

ODYS employees prior to her testimony at the invocation hearing, those conversations did not

cause her to have any preconceived notions before she actually reviewed M.B.’s file and the

numerous incident reports filed against him.

       {¶27} Viewing the testimony presented at the invocation hearing in its entirety, including

the court’s direct questioning of Dr. Alpert, we cannot say the trial court’s evidentiary ruling

following ODYS’s objection impacted its decision to invoke the adult portion of M.B.’s

dispositional sentence. Thus, we find the trial court’s decision to entertain the objection from

counsel for ODYS and its preclusion of certain testimony did not affect M.B.’s substantial rights

and was, at worst, harmless error. Accordingly, M.B.’s first and second assignments of error

are overruled.

                                   B.   Confrontation Clause

       {¶28} In his third assignment of error, M.B. argues the trial court violated his

constitutional rights to confrontation and cross-examination where he was not given the

opportunity to confront certain ODYS employees or Dr. Alpert’s potential bias.

       {¶29} The Confrontation Clause of the Sixth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, provides that

“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.” The United States Supreme Court has interpreted the clause to bar

admission of testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify and the defendant has had a prior opportunity for cross-examination.

Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford

did not define the word “testimonial” but stated that the core class of statements implicated by

the Confrontation Clause includes statements “‘made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use at a later

trial.’” Id. at 52, quoting the amicus brief of the National Association of Criminal Defense

Lawyers.

          {¶30} On appeal, M.B. argues, for the first time, that his constitutional rights were

violated because he was unable to confront the ODYS employees who created the incident

reports that were relied on by the state’s witnesses during the invocation hearing.          M.B.

contends that “defense counsel was never afforded the opportunity to probe or explore [the

ODYS employee’s] personal knowledge, perceptions, operating procedures, or overall

credibility.”   M.B. further reiterates many of the same arguments raised in his previous

assignments of error.    He contends that the trial court’s evidentiary ruling regarding privileged

conversations deprived him of the opportunity to conduct a meaningful cross-examination of Dr.

Alpert.

          {¶31} After careful review, we find M.B.’s reliance on the constitutional protections

afforded under the Sixth Amendment to be without merit. Significantly, M.B. did not raise
confrontation objections below and has therefore waived this issue on appeal.2                          Moreover, an

“invocation proceeding is not a criminal proceeding.”                         In re J.V., 134 Ohio St.3d 1,

2012-Ohio-4961, 979 N.E.2d 1203, at ¶ 20. Rather, an invocation proceeding is analogous to a

“proceeding incident to a criminal court’s imposition of a suspended sentence.”                            Id. at ¶ 16.

This distinction is significant as this court has held that “the Confrontation Clause does not apply

to sentencing proceedings.” State v. Diaz, 8th Dist. Cuyahoga No. 102582, 2015-Ohio-4382, ¶

3, citing Williams v. New York, 337 U.S. 241, 246-250, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949);

State v. Williams, 8th Dist. Cuyahoga No. 98934, 2013-Ohio-2201, ¶ 18.

         {¶32} As previously stated, the only restriction on the admission of evidence during an

invocation proceeding is that the evidence must be “material and relevant.” In re A.A.W. at ¶

13. In this case, the incident reports bore a sufficient indicia of reliability and were relevant to

the juvenile court’s determination of whether M.B. was unlikely to be rehabilitated during his

remaining time in the juvenile facility.            Thus, even if this court were to assume the detention

center incident reports were “testimonial” in nature,3 we find the juvenile court’s consideration

of the relevant reports and YBIR records was proper.

         {¶33} Furthermore, while M.B. failed to raise confrontation objections below, the record

reflects that he was afforded the minimum requirements of due process under the Fourteenth


2
   “It is a well-established principle that Confrontation Clause rights, like other constitutional rights, can be waived.”
State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 14, citing Brookhart v. Janis, 384 U.S.
1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Hawkins v. Hannigan, 185 F.3d 1146, 1154 (10th Cir.1999) (“There is
no doubt that a defendant may waive” the right to confrontation). See also Magruder v. Commonwealth, 275 Va.
283, 295, 657 S.E.2d 113 (2008) (Crawford did not speak to the issue of waiver of right to confrontation);
Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo.2007) (Crawford “did not alter the fact that the right to
confrontation can be waived”).

3
   See State v. Raines, 362 N.C. 1, 17, 653 S.E.2d 126 (2007) (finding the admission of detention center incident
reports did not violate defendant’s Confrontation Clause rights since the statements therein were not testimonial —
but “are more like business records, which by their nature are not testimonial.”).
Amendment. Here, M.B. was given ample opportunity to confront the state’s witnesses and

dispute whether the incident reports sufficiently demonstrated that M.B. was unlikely to be

rehabilitated. Defense counsel thoroughly cross-examine each of the state’s witnesses regarding

the substance of numerous incident reports and the video surveillance footage that depicted many

of the altercations described in said reports.   Similarly, Dr. Alpert was zealously cross-examined

regarding her familiarity with M.B.’s case and his behavior at Cuyahoga Hills.            And, as

previously discussed, the questions posed to Dr. Alpert by the court ensured that her testimony

was the product of her unbiased review of M.B.’s record and not guided by any preconceived

notions.    M.B.’s inability to further dissect the nature of Dr. Alpert’s off-the-record

conversations with ODYS staff did not impact the court’s ultimate conclusion.

       {¶34} Under these circumstances, we find M.B. has failed to demonstrate a violation of

his constitutional rights or firmly established evidentiary principles.

       {¶35} M.B.’s third assignment of error is overruled.

                             C. Serious Youthful Offender Sentence

       {¶36} In his fourth assignment of error, M.B. argues the juvenile court erred when it

determined, in the absence of clear and convincing evidence, that M.B. was unlikely to be

rehabilitated during the remainder of the court’s jurisdiction.

       {¶37} In State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, the Ohio

Supreme Court distinguished the treatment of serious youthful offenders in Ohio juvenile courts

from that of adults in the criminal justice system.    The court recognized that SYO cases do not

involve a bindover to an adult court and that the juvenile remains under the continuing

jurisdiction of the juvenile court judge. Id. at ¶ 18. Any adult sentence imposed by the

juvenile court at sentencing acts as a “potential sentence.” Id. at ¶ 30. The juvenile must
engage in separate conduct detrimental to his own rehabilitation in the juvenile system before he

may be committed to an adult facility.    Id. at ¶ 38.

       {¶38} Theoretically, the threat of an adult sentence encourages the juvenile to cooperate

in his own rehabilitation. Id. at ¶ 18. Indeed, the overriding purposes for dispositions under

R.C. Chapter 2152 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).

       {¶39} Under R.C. 2152.14(E), the juvenile court may invoke the adult portion of an SYO

dispositional sentence if the juvenile court finds, by clear and convincing evidence, that:

       (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 division (A), (B), or
       (C) of this section, and the person’s conduct demonstrates that the person is
       unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.

R.C. 2152.14(E)(1).

       The conduct that can result in the enforcement of an adult sentence includes
       committing, while in custody or on parole, an act that is a violation of the rules of
       the institution or the conditions of supervision and that could be charged as any
       felony or as a first-degree misdemeanor offense of violence if committed by an
       adult[.]

D.H. at ¶ 36, citing R.C. 2152.14(A)(2)(a), (B)(1). In the alternative, “engaging in conduct that

creates a substantial risk to the safety or security of the institution, the community, or the victim”
constitutes conduct that can result in the enforcement of an adult sentence. Id., citing R.C.

2152.14(A)(2)(b) and (B)(2).

       {¶40} “The clear-and-convincing-evidence standard allowed by R.C. 2152.14(E)(1) is

less rigorous [than the beyond-a-reasonable doubt standard required in criminal trials], though

stronger than a mere preponderance-of-the-evidence standard.” In re J.V., 134 Ohio St.3d 1,

2012-Ohio-4961, 979 N.E.2d 1203, ¶ 20. 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.

       {¶41} “Ohio courts of appeal that have reviewed a trial court’s clear-and-convincing

conclusions in other contexts will not disturb that conclusion when it is supported by evidence

that is legally sufficient to satisfy the clear and convincing standard of proof.” In re M.M., 3d

Dist. Allen No. 1-17-56, 2018-Ohio-1110, ¶ 16, citing Cross at 477; State v. James, 3d Dist.

Van Wert No. 15-00-02, 2000 Ohio App. LEXIS 2249, 2 (May 25, 2000); In re Gambrel, 3d

Dist. Logan Nos. 8-02-32 and 8-02-33, 2003-Ohio-1025, ¶ 6.

       {¶42} In this case, it is undisputed that M.B. was over 14 years of age and was serving the

juvenile portion of his SYO dispositional sentence at the time of the invocation hearing.   It was

also undisputed that M.B. engaged in conduct that could be charged as a felony or misdemeanor

of violence, if committed by an adult.   However, M.B. argues the state failed to prove, by clear

and convincing evidence, that he was “unlikely to be rehabilitated during the remaining period of

juvenile jurisdiction.” We disagree.

       {¶43} At the invocation hearing, Ast provided a detailed and thorough description of

M.B.’s aggressive and often violent behavior during his time at ODYS.           Specifically, she
testified to no less than eight instances of violence perpetrated by M.B. on staff members and

other youths, and one incident involving M.B.’s role in starting a fire in the facility’s recreation

room. Ast further testified to other acts of misconduct that resulted in M.B. being cited for

facility rule violations.   The YBIR records submitted to the court reflect approximately 19

separate citations, including violation of the facility’s rules against refusing to follow staff

instruction, refusing to attend required programing, threatening conduct, complicity, security

threat group activity, misusing or abusing property, out of area, offensive conduct, sexual

harassment toward staff, sexual misconduct, and creating a health and safety hazard.

        {¶44} Likewise, superintendent Kelly provided ample testimony concerning the impact

M.B.’s violent and disruptive behavior was having on the safety and rehabilitation of other youth

in the facility.   He explained:

        When I look at say [M.B.]’s conduct over the past 90 days, my biggest fear with
        the level of violence that’s taken place at the facility, someone is going to be
        seriously hurt. Every night I get calls about different incidents that happen, and
        I’m going to tell you now, never in my wildest dreams did I think about death
        inside of the facility like I think about it at [Cuyahoga Hills]. And it’s because of
        the level of violence that these youths are committing. And [M.B.] plays a major
        part in that role.

        ***

        It’s about keeping folks safe. It’s about keeping my staff safe. It’s about keeping
        the other youths safe. When you look at say the incident reports that you were
        provided with [M.B.], just about every area of the facility I’ve got kids going to
        school, I’ve got [M.B.] running into classrooms. I’ve got kids going down to eat.
          I got [M.B.] assaulting kids down in the chow hall. I’ve got kids on the
        telephone. I’ve got [M.B.] assaulting kids. We have a lot of things that we
        want to do in the facility, but before we do anything, we’ve got to keep it safe.
        We’ve got to make it safe for employees, and I’m going to tell you now, when you
        read some of the AMS’s that’s written on [M.B.], it’s about intimidation. It’s
        about threats. And we cannot make any progress with moving the facility
        forward to provide those [re]habilitation services that people expect until we can
        create a safe and secur[e] facility.
       {¶45} In addition to M.B.’s behavioral issues, Dr. Alpert testified that M.B. had multiple

services made available to him at ODYS, but was not consistently participating in school or the

available programs. Because M.B. had not taken steps to fully engage in the available programs

and facility resources, Dr. Alpert expressed her concerns with what more ODYS had to offer

M.B.   Similarly, M.B.’s parole officer testified that while M.B. did participate in schooling “at

times” and completed the alcohol and drug portion of his court-ordered programing, he failed to

consistently comply with his juvenile court orders while at ODYS.

       {¶46} This court recognizes the GAL’s concerns with the impact adult prison may have

on M.B.’s future in this community upon his release. However, given the serious nature of the

testimony presented at the invocation hearing, we find it was reasonable for the trial court to

conclude that M.B. was not fully engaged in his rehabilitation at ODYS and posed an ongoing

risk to the safety and security of the institution.     M.B. simply had not demonstrated any

improvement in his attitude or behavior since arriving at ODYS. For these reasons, we find the

trial court’s finding that M.B. is unlikely to be rehabilitated during the remaining period of the

juvenile court’s jurisdiction is supported by clear and convincing evidence.

       {¶47} Alternatively, M.B. argues “the juvenile court’s conclusion that M.B. could not be

rehabilitated, despite an opportunity for four more years of treatment, was against the manifest

weight of the evidence.” However, whether the evidence is to be believed is a matter squarely

within the province of the trial court. State v. Brown, 10th Dist. Franklin No. 03AP-331,

2004-Ohio-1219, ¶ 13. Accordingly, we defer to the trial court’s assessment of the witnesses

credibility and its application of the clear-and-convincing standard of proof.

       {¶48} Finally, M.B. argues the trial court erred when it issued a judgment entry that failed

to reflect what actually occurred at the invocation hearing.    M.B. contends that the trial court
improperly found in its journal entry that M.B. “is unlikely to be rehabilitated” where the

transcript of the proceeding is devoid of such a finding from the court.

       {¶49} After careful review of the transcript, M.B. correctly states that the juvenile court

did not expressly find that M.B. was “unlikely to be rehabilitated during the remaining period of

juvenile jurisdiction” at the conclusion of the invocation hearing.   However, the juvenile court

did make the following relevant statement on the record concerning the likelihood of M.B.’s

rehabilitation at the ODYS facility:

       I have two competing interests. I have the interest of getting you the help you
       need in rehabilitation. * * * I also have the interest of keeping the facility safe
       and doing what they’re supposed to do, and those things are clashing right now.

(Emphasis added.)

       {¶50} In addition, the R.C. 2152.14(E)(1)(c) finding was unequivocally made in the trial

court’s September 25, 2017 journal entry invoking the adult portion of M.B.’s dispositional

sentence. The entry states, in relevant part:

       The Court further finds by clear and convincing evidence that the youth has been
       admitted to a Department of Youth Services facility or criminal charges are
       pending against the youth, and the youth’s conduct demonstrates that the youth is
       unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.

       {¶51} Because “it is well established that a court speaks through its journal entries,”

State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12, we find the trial

court made all necessary findings as required under R.C. 2152.14(E)(1).

       {¶52} M.B.’s fourth assignment of error is overruled.

                             D. Ineffective Assistance of Counsel

       {¶53} In his fifth assignment of error, M.B. argues he was deprived of his Sixth

Amendment right to the effective assistance of counsel at the invocation hearing.    He contends
defense counsel was ineffective because he failed to request an updated evaluation “pertaining to

M.B.’s mental health and amenability.”

       {¶54} The Sixth Amendment to the United States Constitution guarantees an accused

juvenile the same rights to effective assistance of counsel as an adult criminal defendant. In re

Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To prevail on a claim of

ineffective assistance of counsel, a defendant must show that counsel’s performance fell below

an objective standard of reasonableness and that prejudice arose from counsel’s performance.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.              A

defendant must show that counsel acted unreasonably and that but for counsel’s errors, there

exists a reasonable probability that the result of the proceeding would have been different.

Strickland at 696; Bradley at paragraph three of the syllabus. In making this determination, the

reviewing court must presume that counsel’s conduct was competent. Id.

       {¶55} In support of his ineffective assistance of counsel claim, M.B. contends that an

updated mental health and amenability evaluation would have provided the juvenile court with

“some basis upon which to assess M.B.’s rehabilitative prospects.” We are not persuaded by

M.B.’s position.

       {¶56} In this case, there was no evidence presented at the invocation hearing to suggest

that M.B.’s violent and disruptive behavior was related to, or the product of, mental health or

competency issues. Furthermore, we find nothing in this record to support M.B.’s contention

that an updated amenability evaluation would have supported defense counsel’s attempt to

demonstrate the likelihood of M.B.’s rehabilitation. The purpose of the invocation hearing was

to determine whether M.B. was unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction.   As set forth during the invocation hearing, M.B. has continuously

engaged in disruptive and violent behavior during his time in the juvenile facility.         He has

continued his violent outbursts, caused a fire inside the facility, and accumulated numerous

YBIRs for various rule violations. Because an amenability or psychological evaluation would

have considered much of the information provided at the invocation hearing, it is unlikely that

the conclusions rendered in such an evaluation would have benefitted M.B.       Certainly, this court

cannot conclude that the outcome of the invocation proceedings would have been different had

M.B. undergone further evaluations.

       {¶57} Based on the foregoing, we find M.B. has not demonstrated that his constitutional

right to effective assistance of counsel was violated.      M.B.’s fifth assignment of error is

overruled.

       {¶58} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County 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.



EILEEN T. GALLAGHER, PRESIDING JUDGE

MELODY J. STEWART, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
CONCURRING OPINION)
SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

       {¶59} In light of the fact we granted reconsideration, I would more directly address the

substantive issue raised by M.B.     In the motion for reconsideration, M.B. claims (1) that this

court failed to consider whether ODYS lacks standing to object to its employee’s testimony, and

(2) that this court applied a harmless-error analysis to a violation of the Confrontation Clause.

       {¶60} The first argument ignores the fact that the prosecutor objected to the witness’s

testimony at issue — ODYS’s counsel merely provided the background information enabling the

court to resolve the objection. There is no standing issue because the prosecutor initiated the

objection. Further, even if counsel for ODYS had objected, M.B. has not presented authority

for the proposition that a witness’s attorney is barred from participating in an invocation

proceeding in a limited capacity to protect the rights of the testifying witness. M.B.’s second

argument — that the majority applied an outcome-determinative analysis to a Confrontation

Clause violation — is not based on the majority’s holding that the Confrontation Clause does not

apply in invocation or sentencing proceedings. In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961,

979 N.E.2d 1203, ¶ 16. M.B. does not contest this legal conclusion.

       {¶61} With respect to the merits of the appeal, I concur in judgment only.

.
