[Cite as In re L.W., 2012-Ohio-5796.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: L.W., JR.                                  :

                                                  :            C.A. CASE NO.    25238

                                                  :            T.C. NO. A2011-9327-01

                                                  :            (Civil appeal from Common
                                                                Pleas      Court,    Juvenile
                                                                Division)
                                                  :

                                                  :

                                           ..........

                                           OPINION

                         Rendered on the    7th       day of      December     , 2012.

                                           ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro,
Ohio 45066
      Attorney for Defendant-Appellant

                                           ..........

FROELICH, J.

                {¶ 1} L.W. appeals from a judgment of the Montgomery County Court of
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Common Pleas, Juvenile Division, which adjudicated him to be a delinquent for tampering

with evidence, with a firearm specification. The court committed L.W. to the Department

of Youth Services (“DYS”) for a minimum of six months on the tampering with evidence

charge and for one year on the firearm specification, with the maximum term not to exceed

his 21st birthday.

         {¶ 2}       L.W. claims that the juvenile court was biased against him and that it erred

in committing him for the one-year maximum sentence on the firearm specification. For the

following reasons, the judgment of the juvenile court will be affirmed.

                                                                 I

         {¶ 3}         The State presented the following evidence at the hearings in this case.

         {¶ 4}         Two Dayton Police Department detectives testified that they learned

through a confidential informant that crack cocaine and marijuana were being sold at the

back door of a residence at a specific address1 in Dayton, that the confidential informant

made controlled buys from the house under the detectives’ supervision, that L.W. had been

the seller in some of these sales, and that L.W. had a gun in his hand during one of the

controlled buys. The detectives also testified that they had crossed paths with L.W. at “hot

spots” of gang and drug activities around the city and believed that he was a member of the

“Hoodkal set” of the Dayton View Hustlers gang.

         {¶ 5}         The State’s evidence further established that detectives obtained a search

warrant for the house, which was executed by members of the SWAT team because of the


             1
                There are discrepancies in the record as to the address at which L.W. allegedly sold drugs and tampered with evidence,
   but these discrepancies are not relevant to the issues presented in this appeal.
                                                                                            3

concern that there were guns present. L.W. was named as a suspect in the warrant. During

the execution of the search warrant, which occurred after dark, officers observed L.W. in an

upstairs window “manipulating something in his hand”; L.W. then threw a gun and some

marijuana from the window as the SWAT team surrounded the house. These actions

formed the basis of the State’s complaint charging L.W. with tampering with evidence and

the firearm specification.

       {¶ 6}       The State moved to transfer the case from juvenile court so that L.W. could

be tried as an adult. The juvenile court conducted an amenability hearing, after which it

denied the State’s motion to transfer to case out of juvenile court.            Following an

adjudication hearing, the juvenile court found that L.W. was responsible for tampering with

evidence, with a firearm specification, as alleged in the complaint. He was sentenced as

described above.

       {¶ 7}       L.W. raises two assignments of error on appeal.

       {¶ 8}       The first assignment of error states:

       The trial court erred by demonstrating bias against Appellant prior to

       the court’s ruling at the adjudicatory hearing.

       {¶ 9}    L.W. contends that it was “plain and clear” that the juvenile court judge was

biased against him when, at the amenability hearing, the court stated, “I don’t think you’re

guilt free. I don’t think you’re innocent. It’s clear from your involvement with our court

system that you have for an extended period of time been involved with drug trafficking at

one level or another.”       The State responds that, when viewed in context, the judge’s

comments do not demonstrate bias.
[Cite as In re L.W., 2012-Ohio-5796.]
        {¶ 10}     “Judicial bias is ‘a hostile feeling or spirit of ill will or undue friendship or

favoritism toward one of the litigants or his attorney, with the formation of a fixed

anticipatory judgment on the part of the judge, as contradistinguished from an open state of

mind which will be governed by the law and the facts.’ State v. LaMar, 95 Ohio St.3d 181,

189, 2002-Ohio-2128. Trial judges are ‘presumed not to be biased or prejudiced, and the

party alleging bias or prejudice must set forth evidence to overcome the presumption of

integrity.’ Eller v. Wendy’s Internatl., Inc. (2000), 142 Ohio App.3d 321, 340, 755 N.E.2d

906. In Eller, the court also noted that ‘[t]he existence of prejudice or bias against a party is

a matter that is particularly within the knowledge and reflection of each individual judge and

is difficult to question unless the judge specifically verbalizes personal bias or prejudice

toward a party.’”       (Additional internal citations omitted.) Weiner v. Kwait, 2d Dist.

Montgomery No. 19289, 2003-Ohio-3409, ¶ 89-90.

        {¶ 11}     The comments upon which L.W. relies were made at the amenability

hearing, which is required by R.C. 2152.12(B) and at which the trial court considered

whether to transfer L.W.’s case from juvenile court for trial as an adult. The portion of the

trial court’s comments cited by L.W. as evidence of bias does not provide a complete and

accurate picture of the comments.

        {¶ 12}     Prior to issuing its decision from the bench, the court discussed at length

the factors set forth at R.C. 2152.12(D) and (E), which are to be considered in determining

whether to transfer a juvenile to the general division for treatment as an adult. The court

concluded that two factors weighed heavily in favor of transfer: the act charged was

committed “for hire or as part of a gang or other criminal activity,” and L.W. had a firearm

during the commission of the offense. R.C. 2152.12(D)(4) and (5).
                                                                                                5

       {¶ 13}    According to the court, weighing the other factors was more challenging.

With respect to L.W.’s emotional and psychological maturity (R.C. 2152.12(D)(8)), the

court indicated that it would rely on the psychological evaluation, which found that L.W.

“does not have a mental illness and he is not a mentally retarded person.” The court noted

that the offense at issue was arguably induced or provoked by the police, if the police were

viewed as the “victims,” because 25 to 35 police officers were “raiding” L.W.’s home

when he threw a gun out the window. R.C. 2152.12(E)(1). Depending on whether L.W.

was construed as a leader or as a follower in the gang, he may have been under the coercion

of another person at the time of the act charged, R.C. 2152.12(E)(3), or he may have been a

principal offender. L.W. had been adjudicated in the past, but his actions in this case did

not create any physical harm to any person or property. R.C. 2152.12(D)(1).

       {¶ 14}    The court also detailed L.W.s extensive record of misdemeanor offenses,

but noted that he had not yet been arrested or charged for participating in drug buys,

notwithstanding the State’s assertions that he had “flown under the radar” and that

confidential informants had identified him as a seller. The court also observed that the

State’s evidence of gang activity involved many photographs of L.W. which were found on

MySpace and other internet sites, which tended to show association with gang members, but

did not depict illegal activity or clearly establish the extent of his involvement with the gang.

       {¶ 15}    After discussing the relevant factors, the trial court stated that the decision

whether to transfer L.W. was “a very difficult decision to make.” The court continued:

                Young man, I believe you are in a gang. I believe you are a serious

       threat to this community. I believe your family, your father is a very serious
                                                                                 6

threat to this community. It is clear that your actions are a danger. Your

response over the last four or five years had been mediocre at best.

       ***

       The problem with this case is that although I believe that you are a

danger to this community, I don’t believe that there is [sic] sufficient facts

before the Court to transfer him to the adult court system.

       His psychological report clearly shows that he has been a victim of his

community and his family. I’m not sure if being treated as a juvenile will

help him, but I do believe there is still time that potentially he can be

rehabilitated in the juvenile system if he’s kept away from his family long

enough to make it work.

       Young man, I think I’ve made it real clear to you, I don’t think you’re

guilt free. I don’t think you’re innocent. It’s clear from your involvement

with our court system that you have for an extended period of time been

involved with drug trafficking at one level or another.

       But I can’t in my heart transfer this young man to the adult court

system yet. This Court has failed. He’s been on probation in the past. * * *

       * * * I blame my own probation department for not giving this young

man maybe enough services, I have to think, well, they didn’t know that he

did these drug sales or he was involved in those, * * *. And so that again

leads me to believe that maybe our court failed him, just like his family has

done for the last 18 years.
                                                                                              7

       {¶ 16}      The trial court’s statements, viewed as a whole, do not demonstrate that the

court was biased against L.W. In fact, they show significant reflection on the conflicting

factors that weighed on the decision to transfer L.W., an inclination to place some of the

responsibility for L.W.’s past failures to reform his behavior on the court itself, and a

willingness to give L.W. another chance. After all, the trial court did not transfer L.W. to

an adult court, where he could have faced more serious penalties. Accordingly, we see no

basis to conclude that the trial court was biased against L.W.

       {¶ 17}      The first assignment of error is overruled.

       {¶ 18}      L.W.’s second assignment of error states:

       The trial court abused its discretion by committing appellant to the

       Department of Youth Services for the maximum one-year on the firearm

       specification.

       {¶ 19}      Both parties agree that, pursuant to R.C. 2152.17(A)(1), the trial court was

permitted to commit L.W. for up to one year for a firearm specification charged under R.C.

2941.141. L.W. contends, however, that the trial court abused its discretion in imposing the

maximum term, because he “only had a number of misdemeanor adjudications prior to the

instant matter.”

       {¶ 20}      R.C. 2152.01(A) states that the “overriding purposes” of juvenile

sentencing 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.”

       {¶ 21}      In imposing the maximum sentence on the gun specification, the juvenile
                                                                                           8

court expressed its belief that “this young man needs substantial rehabilitation and

treatment.” The court had previously stated its concerns that L.W. was dangerous, that his

friends and family were a bad influence on him, that his family had “failed him * * * for the

last 18 years,” and that he needed to be “kept away” from these bad influences “long enough

to make [rehabilitation] work.” The court reiterated that it “wanted [L.W.] treated as a

juvenile, not as an adult,” and encouraged L.W. to take advantage of the opportunity he was

being given, because if he “blew this chance,” he could be required to serve more time on

the tampering charge or could “get picked up as an adult for much more serious charges.”

       {¶ 22}   The juvenile court’s conclusions that L.W. needed substantial rehabilitation

and that such rehabilitation could best be accomplished by an extended commitment,

keeping him away from the poor influences in his life, were supported by the record. As

such, we cannot conclude that the trial court abused its discretion in committing L.W. to

DYS for the maximum term of one year on the firearm specification.

       {¶ 23}   The second assignment of error is overruled.

       {¶ 24}   The judgment of the juvenile court will be affirmed.

                                        ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Andrew T. French
Marshall G. Lachman
Hon. Anthony Capizzi
