[Cite as In re B.K., 2018-Ohio-864.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 IN THE MATTER OF: B.K., aka R.B.K.             :
                                                :
                                                :   Appellate Case No. 2017-CA-32
                                                :
                                                :   Trial Court Case No. D46849
                                                :
                                                :   (Appeal from Juvenile Court)
                                                :
                                                :
                                                :

                                          ...........

                                          OPINION

                             Rendered on the 9th day of March, 2018.

                                          ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Appellee

RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Dayton, Ohio 45475
     Attorney for Appellant

                                         .............




TUCKER, J.
                                                                                       -2-




       {¶ 1} Appellant R.B.K., a minor, appeals from a judgment of the Greene County

Court of Common Pleas, Juvenile Division committing him to the custody of the Ohio

Department of Youth Services (“ODYS”).         For the following reasons, we affirm that

judgment except as to the restitution order because, as conceded by the State, the order

must be amended to the agreed upon restitution amount of $900.00.



                             I. Facts and Procedural History

       {¶ 2} The record reflects that R.B.K. was charged in October 2015 with three

counts of rape, a felony of the first degree if committed by an adult, and three counts of

gross sexual imposition, a felony of the third degree if committed by an adult. The

charges related to R.B.K.’s conduct with a male cousin and a female cousin, both of whom

were younger than ten.

       {¶ 3} A plea agreement was filed with the court on January 30, 2017. As part of

the agreement, the State amended two counts of rape to felonious assault, felonies of the

second degree if committed by an adult. The State also dismissed the remaining counts.

In exchange, R.B.K. entered admissions to both amended charges. The plea agreement

further provided for restitution of $900.00.

       {¶ 4} Following an April 26, 2017 disposition hearing, the juvenile court committed

R.B.K. to ODYS for an indefinite term consisting of a minimum period of one year on each

felony offense and a maximum period not to exceed his twenty-first birthday. The court,

however, suspended the commitment on the following conditions:

       (1) No future violation of law;
                                                                                      -3-


       (2) Successful compliance with monitored time until the age of 21;

       (3) Successful completion of the Felony Offenders Program;

       (4) Successful completion of Community Control;

       (5) Pay fines, court costs and restitution in a timely manner;

       (6) Submit to a DNA sample;

       (7) No unsupervised contact with children under age 12;

       (8) Outpatient counseling services;

       (9) Remain compliant with medical services and medicines;

       (10) Obtain GED.

       {¶ 5} The court also required R.B.K. to have no contact with his cousins and to

undergo sex offender counseling at Miami Valley Juvenile Rehabilitation Center. Finally,

the court required R.B.K. to make restitution of $1,340.

       {¶ 6} R.B.K. filed a timely appeal.



                                       II. Analysis

       {¶ 7} R.B.K.’s only assignment of error states as follows:

       THE TRIAL COURT ERRED TO THE PREJUDICE OF RBK WHEN IT

       SENTENCED HIM TO THE ODYS FOR A SEVEN YEAR PERIOD TO THE

       MAXIMUM      OF    HIS   21ST     BIRTHDAY      AND    PLACING   SEVERE

       UNREASONABLE RESTRICTIONS AND CONDITIONS ON HIM

       {¶ 8} RBK challenges his sentence and attendant restrictions as an abuse of

discretion.

       {¶ 9} The purposes of juvenile court dispositions include providing for the care,
                                                                                         -4-


protection and development of children, protecting the public from wrongful acts, holding

the offender accountable, and rehabilitating the offender.          R.C. 2152.01(A).   The

Supreme Court of Ohio has recognized that “[s]ince its origin, the juvenile justice system

has emphasized individual assessment, the best interest of the child, treatment, and

rehabilitation, with a goal of reintegrating juveniles back into society.” State v. Hanning,

89 Ohio St.3d 86, 88, 728 N.E.2d 1059 (2000).                R.C. 2152.01(B) states that

“[d]ispositions * * * shall be reasonably calculated to achieve the overriding purposes set

forth in this section, commensurate with and not demeaning to the seriousness of the

delinquent child's * * * conduct and its impact on the victim, and consistent with

dispositions for similar acts committed by similar delinquent children * * * [.]”

       {¶ 10} Because the juvenile court “has the opportunity to see and hear the

delinquent child, to assess the consequences of the child's delinquent behavior, and to

evaluate all the circumstances involved,” the statute authorizes it to issue orders of

disposition appropriate to each child. In re Caldwell, 76 Ohio St.3d 156, 160–161, 666

N.E.2d 1367 (1996). Therefore, the juvenile court considers not only the delinquent act,

but “the overall conduct and behavior of the juvenile, the juvenile's history, the remorse

shown by the juvenile and other societal factors * * *.” Id. at 160.

       {¶ 11} A juvenile court has broad discretion in fashioning a dispositional order to

achieve these purposes. In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d

921, ¶ 6. Absent an abuse of that discretion, we will not reverse the decisions of the

juvenile court.   Id.   A trial court abuses its discretion when its attitude is arbitrary,

unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).
                                                                                          -5-


       {¶ 12} R.C. 2152.16(A)(1) provides:

       If a child is adjudicated a delinquent child for committing an act that would

       be a felony if committed by an adult, the juvenile court may commit the child

       to the legal custody of the department of youth services for secure

       confinement as follows:

       ***

       (d) If the child is adjudicated a delinquent child for committing an act that is

       not described in division (A)(1)(b) or (c) of this section and that would be a

       felony of the first or second degree if committed by an adult, for an indefinite

       term consisting of a minimum period of one year and a maximum period not

       to exceed the child's attainment of twenty-one years of age.

       {¶ 13} R.B.K. first claims that the juvenile court erred by imposing a seven-year

commitment to ODYS. In reviewing the record, we note that the court did not impose a

seven-year commitment. Instead, R.B.K. was committed to ODYS for an indefinite term

consisting of a minimum period of one year and a maximum period not to exceed his

attainment of the age of twenty-one. Dkt. At 79. This commitment comports with the

statutory requirement of R.C. 2152.16(A)(1)(d), and thus, does not constitute an abuse of

discretion.

       {¶ 14} R.B.K. next contends that the trial court abused its discretion by requiring

him to complete the sex offender treatment program at the Miami Valley Juvenile

Rehabilitation Center    In support, he contends that there is no evidentiary support for

such a ruling as he did not make an admission to rape or gross sexual imposition and

because he maintained his innocence to those charges. In short, he argues that the
                                                                                         -6-


punishment does not fit the crime to which he made an admission.

       {¶ 15} R.C. 2152.19(A) sets forth a number of authorized dispositional orders

including R.C. 2152.19(A)(8) which is a “catchall” provision that allows a juvenile court to

“[m]ake any further disposition that the court finds proper[.]” Despite the nonsexual

nature of the plea, the juvenile court conditioned community control sanctions, in part,

upon R.B.K.’s completion of a sexual offender treatment program. The pre-disposition

investigation report indicates that R.B.K. admitted to touching his cousin’s vagina

approximately two or three years prior to this incident when his cousin was only four years

old. The record further contains evidence that, if believed, R.B.K. attempted to vaginally

penetrate his cousin with his penis when the cousin was ten. There is also evidence that

he touched her breasts and made her touch his penis. With regard to R.B.K.’s male

cousin, there is evidence that R.B.K. forced his cousin to perform fellatio upon him.

Thus, we find no abuse of discretion. We further note that this issue has been rendered

moot as the parties agree that R.B.K. has completed the program.

       {¶ 16} R.B.K. also challenges that portion of the disposition providing for monitored

time to the age of 21. Monitored time is a disposition permitted by R.C. 2152.19(A)(4)(i)

and constitutes “a period of time during which an offender continues to be under the

control of the sentencing court or parole board, subject to no conditions other than leading

a law-abiding life.” R.C. 2152.02(T); R.C. 2929.01(Y). It acts as a “tether that allows a

court to maintain some connection with a juvenile delinquent.” In re Cross, 96 Ohio St.3d

328, 2002-Ohio-4183, 774 N.E.2d 258, ¶ 27. Regardless of whether he continues to

maintain his innocence as to the original charges, R.B.K. was adjudicated a delinquent

by reason of committing serious offenses against two young victims, and there is
                                                                                           -7-


evidence that this was not the first time he committed a sexual offense. He has, as such,

failed to demonstrate that the ordered monitored time is unreasonable.

       {¶ 17} R.B.K. contends that the juvenile court also abused its discretion by

ordering that his internet usage and social media be monitored. While the court did

mention such a restriction at the disposition hearing, it did not include the condition in the

final dispositional order. Since a court speaks only through its journal, this argument

lacks merit. State v. Cave, 2d Dist. Clark No. 19-CA-6, 2010-Ohio-1237, ¶ 10.

       {¶ 18} R.B.K. complains that the court imposed a condition that he have no

unsupervised contact with children under the age of 12. He contends that this restriction

would make sense if it were limited to contact with his cousins, but that it constitutes an

unreasonable restriction as applied to other young children. Again, there is evidence in

this record that R.B.K. has committed sexual offenses against two children under the age

of ten, and that he did so a few years prior to the alleged offenses when the female victim

was even younger. Thus, we cannot say that this restriction constitutes an abuse of

discretion.

       {¶ 19} Finally, R.B.K. contends that the juvenile court erred with regard to the

amount of restitution due. As conceded by the State, the juvenile court should have only

imposed restitution in the amount of $900.00 as agreed to in the plea agreement. We

note that there is no evidence in the record that indicates the restitution imposed should

have been greater than $900.00. Thus, we conclude that the order of restitution is

erroneous.

       {¶ 20} Based upon the record before us, we conclude that the trial court erred as

to the amount of restitution. However, the trial court did not abuse its discretion with
                                                                                       -8-


regard to the remainder of the disposition. Therefore, the sole assignment of error is

sustained, in part, and overruled in part.




                                         III. Conclusion

       {¶ 21} The sole assignment of error being overruled in part and sustained in part,

the judgment of the juvenile court is reversed solely with regard to the amount of

restitution, and this cause is remanded to the juvenile court to issue an order amending

the restitution to reflect the amount of $900.00 rather than $1,340.00. The judgment is

affirmed in all other respects.



                                      .............



WELBAUM, P.J. and DONOVAN, J., concur.



Copies mailed to:

Nathaniel R. Luken
Richard L. Kaplan
Hon. Adolfo Tornichio
