[Cite as State v. LaRosa, 2020-Ohio-160.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,            :
                                                           CASE NO. 2018-T-0097
          - vs -                                  :

 JACOB R. LaROSA,                                 :

                   Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas.
 Case No. 2015 CR 00942.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor; Christopher Becker and Ashleigh Musick,
 Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
 Warren, OH 44481-1092 (For Plaintiff-Appellee).

 Lynn Maro, Maro & Schoenike, Co., 7081 West Boulevard, Suite 4, Youngstown, OH
 44512 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}       Appellant, Jacob R. LaRosa (“LaRosa”), appeals a judgment in the Trumbull

County Court of Common Pleas, General Division, sentencing him to a prison term of life

without parole, to be served consecutively with three other prison terms. We affirm the

trial court’s judgment.

        {¶2}       The following facts and procedure are supported by the record in this

matter:
       {¶3}    On the morning of March 31, 2015, 15-year-old LaRosa was released from

the Juvenile Justice Center (“JJC”) after serving time in detention for a probation violation.

According to his own account, he met with friends and began drinking excessively.

Shortly after 5:00 p.m., LaRosa entered the house of the victim, 94-year-old Marie

Belcastro, at 509 Cherry Street in Niles, Ohio. Mrs. Belcastro’s house was directly across

from LaRosa’s house and was separated by an alleyway. LaRosa was later identified by

video surveillance, which was provided by a neighbor, walking from the direction of the

victim’s house with a bottle of alcohol and proceeding down the alleyway around the time

of the alleged crimes. The neighbor who provided video surveillance to investigators also

found an empty whiskey bottle in his yard that he believed was removed from Mrs.

Belcastro’s home.

       {¶4}    Thereafter, LaRosa arrived home in a nearly incoherent state with blood on

his shirt, shoes, and glasses. He made claims to multiple family members that he was

attacked by other juveniles who forced him to consume alcohol and other substances at

gunpoint.     LaRosa’s mother called for help.     Niles Police Officer Mobley and EMT

personnel arrived at the residence to attend to LaRosa’s injuries resulting from the alleged

assault.

       {¶5}    As LaRosa was being loaded into the ambulance, Officer Mobley was

alerted to a commotion at 509 Cherry Street, adjacent to LaRosa’s home. One of Mrs.

Belcastro’s daughters waved down the paramedics at the LaRosa residence in a panic

after discovering that the Belcastro residence had been broken into through the side door.

Inside the home, a blood trail was found throughout the house from the living room

through the hallway. A large secretary desk was also toppled over and blocking the front




                                              2
door from the inside. Mrs. Belcastro’s deceased body was discovered by Officer Mobley

and her daughter on the floor in the first bedroom of her home, naked from the waist down

and twisted awkwardly into a fetal position.         She was severely beaten, and her

undergarments were found in the living room. Outside the house, police discovered liquor

bottles, including one liquor bottle that had blood on it.

       {¶6}   LaRosa was taken to St. Joseph Hospital, where his blood alcohol level was

determined to be nearly three times the legal limit for an adult. He had no discernable

injuries to explain the blood on his body. Blood was also found by the attending nurse on

LaRosa’s underwear and his penis. LaRosa’s underwear was seized by investigators.

LaRosa was interviewed by a detective. His statements were erratic and, at times,

incoherent due to his intoxication. LaRosa was not read his Miranda rights prior to this

interview.

       {¶7}   LaRosa was charged in a complaint of delinquency on April 9, 2015, with

four counts alleging crimes involving LaRosa breaking into the home of Mrs. Belcastro,

beating her to death, and attempting to rape her. The case was filed in the Trumbull

County Court of Common Pleas, Juvenile Division, as Case No. 2015-JD-177.

Juvenile Division Proceedings

       {¶8}   On the same day the complaint of delinquency was filed, the state of Ohio

filed a motion to transfer the case from the juvenile division to the Trumbull County Court

of Common Pleas General Division, seeking to charge LaRosa as an adult. Thereafter,

he waived a probable cause hearing, and the matter was set for an amenability hearing

to determine whether LaRosa, who was 15 years old at the time of the alleged crimes,




                                              3
should be transferred to the general division and tried as an adult. The amenability

hearing was conducted over the course of four days, beginning on November 16, 2015.

      {¶9}   At the hearing, the juvenile division heard testimony from, inter alia, the

coroner that conducted the autopsy of Mrs. Belcastro, various doctors who had evaluated

LaRosa and his medical history, detectives and law enforcement officers who investigated

the homicide of Mrs. Belcastro, juveniles who had interactions with LaRosa at JJC before

and after the homicide, and members of LaRosa’s family.

      {¶10} LaRosa’s psychological and behavioral history were presented in great

detail at the amenability hearing. Three experts presented testimony and reports on his

history of treatment, which had been mostly unsuccessful.            LaRosa had been in

treatment—either out-patient or within a structured facility—starting at approximately 8

years of age. He had been prescribed various medications for issues such as bipolar

disorder, ADHD, defiance disorders, and mood disorders.

      {¶11} After closing arguments, the juvenile division issued an order granting the

state’s motion to transfer the case to the general division for criminal prosecution as an

adult. In the order, the court individually addressed each of the statutory factors—R.C.

2152.12(D) in favor of transfer, and R.C. 2152.12(E) weighing against transfer—before

concluding as follows:

             Based on the totality of the facts, relevant testimony, evidence, and
             after due consideration to both sets of factors contained in ORC
             Section 2152 and given [sic] appropriate weight to all evidence
             presented and appropriate, as well as serious concerns for the safety
             of the community given the history of fear his family lived under which
             extended to the neighbors and community and the brutality and
             violence of the alleged offense, THE COURT FINDS that the factors
             for transfer greatly outweigh the factors against transfer. There are
             reasonable grounds to believe that the Juvenile is not amenable to
             care or rehabilitation in a facility designed for the care[,] supervision,



                                             4
              and rehabilitation of delinquent children, and that the safety of the
              community requires that Jacob LaRosa be subject to adult sanctions.

General Division Proceedings

       {¶12} Following the transfer, LaRosa was indicted by the Trumbull County Grand

Jury on December 16, 2015, and charged with four counts: Aggravated Murder (F1) in

violation of R.C. 2903.01(B); Aggravated Burglary (F1) in violation of R.C. 2911.11(A)(1)

and/or (2); Aggravated Robbery (F1) in violation of R.C. 2911.01(A)(1) and/or (3); and

Attempted Rape (F2) in violation R.C. 2923.02(A)&(E)(1) and 2907.02(A)(2)&(B).

       {¶13} On December 14, 2016, LaRosa filed a motion for determination of

competency to stand trial, which was voluntarily withdrawn on August 4, 2017. On June

23, 2017, LaRosa filed a motion for a bifurcated trial, which was denied on July 31, 2017,

and again before trial on February 12, 2018. Neither of these issues are subject to the

present appeal.

Suppression Motion

       {¶14} On March 8, 2017, LaRosa filed a motion to suppress various evidence

obtained during the investigation of the homicide. The evidence sought to be suppressed

that is at issue in the present appeal is as follows:

              A.     Fingernail scrapings from LaRosa taken at the hospital.

              B.     LaRosa’s socks, underwear, and a washcloth used to wipe his
              groin at the hospital.

The motion also sought to suppress statements obtained from LaRosa, as well as the

fruits of any unlawful arrest, search, seizure, and interrogation.

       {¶15} A hearing on the motion to suppress was held on December 28, 2017, and

on February 1, 2018, the trial court issued its judgment with findings of fact and



                                              5
conclusions of law overruling the motion. The court found that there was no expectation

of privacy in LaRosa’s hospital room or in the items removed from LaRosa by hospital

staff after he voluntarily presented there purporting to be the victim of an assault. Further,

the court found that the warrant authorizing a “hand swab” of LaRosa was sufficient in its

description to authorize fingernail scrapings, because “[t]he description of a hand swab is

such that an officer can without reasonable effort identify the place intended to be

swabbed- i.e. the hand. Fingernails are located on the hand.”

        {¶16} Further, the trial court denied suppression of the statements made by

LaRosa in the hospital room because he was not subject to custodial interrogation and,

therefore, did not need to be advised of his Miranda rights. The court held that any

“volunteered unforeseeable incriminating statement unforeseen to police” made by

LaRosa to police and hospital staff alike was not subject to suppression.

Trial and Sentencing

        {¶17} Voir dire commenced for trial in the matter on February 12, 2018. After one

day of voir dire, LaRosa entered a no contest plea to all charges on February 13, 2018.

The trial court advised LaRosa of the potential penalties for each charge, including the

Tier III sex offender registration requirement, and found him guilty of all charges. LaRosa

was also referred by the court to the Adult Supervision Department for a presentence

evaluation, and the court set the matter for a mitigation hearing on April 5and April 6,

2018.

        {¶18} At the mitigation hearing, many of the same witnesses called in the juvenile

amenability proceeding testified: the coroner for Trumbull County, doctors familiar with

both LaRosa and institutional resources, one of the detectives who investigated the




                                              6
homicide, juveniles who discussed the homicide with LaRosa at JJC, and members of

LaRosa’s family.

      {¶19} Dr. Humphrey Germaniuk, the coroner and medical examiner for Trumbull

County, performed Mrs. Belcastro’s autopsy. Dr. Germaniuk testified that Mrs. Belcastro

was approximately four feet, seven to eight inches tall and weighed approximately 80-85

pounds at the time of her death. He stated that she was beaten so severely, he could not

even opine as to how many times she was struck in the head by her assailant. He further

testified that her eyes had been ruptured inside of her head due to the beating, and the

bones in her face and the top of her skull had been crushed rather than merely broken.

A fragmented hearing aid was still compacted into one of her ear canals, and portions of

brain matter were visible through the crushed skull portions in the autopsy photographs.

Dr. Germaniuk determined the manner of Mrs. Belcastro’s death was homicide, and the

cause of death was blunt craniocerebral trauma.

      {¶20} A detective with the Niles Police Department testified as to the scene of the

homicide at the Belcastro residence. On the outside, a side door to Mrs. Belcastro’s home

was broken into, which was photographed and submitted as evidence. Inside the home,

the detective described three different places where the crimes listed in the complaint had

been committed. In the living room, there was a massive amount of blood on the couch,

floor, and sprayed on the walls and lamp. A flashlight—believed to be used in the attack—

was visible in photographs of the living room, as well as Mrs. Belcastro’s sweatpants and

undergarments on the living room floor. In the hallway between the living room and

bedroom, a second location contained a massive amount of blood, as well as blood

splatter on the floorboard and wall. In addition, the detective confirmed the coroner’s




                                            7
testimony that brain matter was visible on the floor and sprayed across the wall, as well

as a broken hearing aid and a piece of Mrs. Belcastro’s skull. In the first bedroom outside

the hallway, a third location contained a massive amount of blood on a bed, as well as

the victim deceased on the floor. She was naked from the waist down, twisted into a fetal

position on the floor, and the entire front of her head and face was crushed, as the

coroner’s testimony and photographs confirmed.

      {¶21} At the conclusion of the mitigation hearing, LaRosa was permitted to

address the trial court. Also, each of the victim’s two daughters were given the chance

to address the court. Each indicated how the particularly brutal circumstances of their

mother’s murder has impacted them, their families, and the community. One of the

daughters specifically asked the trial court to impose the maximum sentence. The state

recommended the maximum sentence of life without the possibility of parole, as well as

for all sentences to be served consecutively.

      {¶22} The trial court reviewed, among other things, a presentence report from the

Department of Adult Probation, the extensive psychological assessments and medical

information provided for LaRosa, victim impact statements, LaRosa’s allocution

statement, the transcript of the juvenile amenability hearing, and the Miller factors for

sentencing juveniles. The presentence report ordered by the court contained an Ohio

Risk Assessment System rating of “very high” with regard to LaRosa’s risk of recidivism.

The report also stated that LaRosa had not only struggled with expressing true remorse,

but had repeatedly bragged about his crimes to other inmates while in JJC, despite having

been advised by his counsel to show remorse.




                                            8
          {¶23} In considering all of the aforementioned, the trial court ordered the following

sentence for each charge:

                 Aggravated Murder (F1)- Life in prison without parole;

                 Aggravated Burglary (F1)- 11 years;

                 Aggravated Robbery (F1)- 11 years;

                 Attempted Rape (F2)- 8 years.

          {¶24} The trial court ordered the sentences to be served consecutively, stating—

among other things—LaRosa showed a lack of remorse, the harm was so great and

unusual that a single prison term does not adequately reflect the seriousness of the

conduct, and consecutive terms are necessary to protect the public and punish him.

LaRosa was also classified as a Tier III sex offender with the most stringent, lifetime

reporting requirements.

          {¶25} LaRosa filed a timely notice of appeal and raises seven assignments of

error for our review.       For clarity and convenience, we combine and consider the

assignments out of order.

          {¶26} LaRosa’s first two assignments of error challenge the juvenile division’s

decision to transfer the matter to the general division. LaRosa’s first assignment of error

states:

                 Appellant’s Assignment of Error No. 1: The juvenile court abused
                 its discretion and violated Jacob LaRosa’s due process rights when
                 it determined Jacob was not amenable to treatment in the juvenile
                 system, in violation of R.C. §2152.12(b), the Fifth, Eighth and
                 Fourteenth Amendment to the United States Constitution and Article
                 I, Section 10 and 16 of the Ohio Constitution.

          {¶27} During an amenability determination, the juvenile division may transfer

jurisdiction if it finds, inter alia, that the child is not amenable to rehabilitation within the



                                                9
juvenile justice system and that, to ensure the safety of the community, the child should

be subject to adult sanctions. R.C. 2152.12(B)(3). R.C. 2152.12(D) lists the factors in

favor of transferring jurisdiction:

               (1) The victim of the act charged suffered physical or psychological
               harm, or serious economic harm, as a result of the alleged act.

               (2) The physical or psychological harm suffered by the victim due to
               the alleged act of the child was exacerbated because of the physical
               or psychological vulnerability or the age of the victim.

               (3) The child’s relationship with the victim facilitated the act charged.

               (4) The child allegedly committed the act charged for hire or as a part
               of a gang or other organized criminal activity.

               (5) The child had a firearm on or about the child’s person or under
               the child’s control at the time of the act charged, the act charged is
               not a violation of section 2923.12 of the Revised Code, and the child,
               during the commission of the act charged, allegedly used or
               displayed the firearm, brandished the firearm, or indicated that the
               child possessed a firearm.

               (6) At the time of the act charged, the child was awaiting adjudication
               or disposition as a delinquent child, was under a community control
               sanction, or was on parole for a prior delinquent child adjudication or
               conviction.

               (7) The results of any previous juvenile sanctions and programs
               indicate that rehabilitation of the child will not occur in the juvenile
               system.

               (8) The child is emotionally, physically, or psychologically mature
               enough for the transfer.

               (9) There is not sufficient time to rehabilitate the child within the
               juvenile system.

To the contrary, R.C. 2152.12(E) lists the factors in favor of retaining jurisdiction:

               (1) The victim induced or facilitated the act charged.

               (2) The child acted under provocation in allegedly committing the act
               charged.



                                              10
               (3) The child was not the principal actor in the act charged, or, at the
               time of the act charged, the child was under the negative influence
               or coercion of another person.

               (4) The child did not cause physical harm to any person or property,
               or have reasonable cause to believe that harm of that nature would
               occur, in allegedly committing the act charged.

               (5) The child previously has not been adjudicated a delinquent child.

               (6) The child is not emotionally, physically, or psychologically mature
               enough for the transfer.

               (7) The child has a mental illness or intellectual disability.

               (8) There is sufficient time to rehabilitate the child within the juvenile
               system and the level of security available in the juvenile system
               provides a reasonable assurance of public safety.

In addition to the factors specifically listed in the statute, the juvenile court is instructed to

consider “any other factor bearing on whether the child is amenable to juvenile

rehabilitation, including a mental examination of the child by a public or private agency or

a person qualified to make the examination.” R.C. 2152.12(C). “The record shall indicate

the specific factors that were applicable and that the court weighed.” R.C. 2152.12(B)(3).

       {¶28} “[T]he juvenile court enjoys wide latitude to retain or relinquish jurisdiction,

and the ultimate decision lies within its sound discretion.” State v. Watson, 47 Ohio St.3d

93, 95 (1989), citing State v. Carmichael, 35 Ohio St.2d 1 (1973), paragraphs one and

two of the syllabus. A juvenile court’s amenability determination under R.C. 2152.12 will

not be reversed unless the court has abused its discretion. See State v. Douglas, 20

Ohio St.3d 34, 37 (1985); see also Carmichael, supra.

       {¶29} In the matter sub judice, the juvenile court stated each factor contained in

R.C. 2152.12(D) and (E) individually and engaged in an analysis regarding each factor.




                                               11
Specifically, the court found that seven of the nine factors in R.C. 2152.12(D) weighed in

favor of transfer, whereas none of the eight factors in R.C. 2152.12(E) weighed against

transfer, and the court indicated greater weight was given to certain factors.

       {¶30} LaRosa argues on appeal that multiple factors were determined incorrectly

by the juvenile court and without support in the record. Specifically, LaRosa contends

that factor 8 under R.C. 2152.12(D)—also contained in factor 6 under R.C. 2152.12(E)—

relating to whether the juvenile is emotionally, physically, or psychologically mature

enough for transfer, was decided incorrectly and unsupported by the record. Also,

LaRosa argues that factor 7, regarding whether rehabilitation of the child can occur in the

juvenile system, and factor 9, regarding whether there is sufficient time to rehabilitate the

child within the juvenile system, were erroneously determined by the court. LaRosa does

not assert in his briefing how his due process rights were violated by the juvenile court in

conducting the amenability hearing.

       {¶31} Multiple psychologists testified and opined that (1) they did not believe

LaRosa was mature enough for transfer; (2) untried treatment options existed in the

juvenile system; and (3) there was adequate time for rehabilitation in the juvenile system.

This testimony alone, however, is not persuasive enough to render the trial court’s

decision an abuse of discretion.         Each of the doctors acknowledged that their

determinations were only with regard to individual factors for the court to consider and

that the juvenile court had the ultimate responsibility to consider all of the statutory factors

balanced together in making an amenability determination. The undisputed factors still

overwhelmingly support transfer to the general division, and the juvenile court was within

its discretion to assign more or less weight to those factors as applicable. Further, the




                                              12
extensive history of unsuccessful or uncompleted treatments over nearly a decade of

LaRosa’s life, beginning in early childhood, support a finding that he will not be amenable

to treatment in the juvenile system before he reaches the age of 21.

       {¶32} The court conducting the amenability hearing is in the best position to

assess the statutory factors after hearing the testimony and evidence. Because the

record reflects that the court fulfilled its obligation under R.C. 2152.12(B)(3) in weighing

the statutory factors, and because its determination is supported by competent and

credible evidence in the record, we hold that the decision to transfer LaRosa to the

general division was not an abuse of discretion, nor was it a violation of his right to due

process.

       {¶33} LaRosa’s first assignment of error is without merit.

       {¶34} LaRosa’s second assignment of error states:

              Appellant’s Assignment of Error No. 2: The decision to transfer
              the case to the general division was invalid because the amenability
              hearing was conducted in violation of due process when the trial
              court permitted introduction and consideration of improper evidence
              and improper arguments in violation of the rights and liberties
              secured by the Fifth, Sixth and Fourteenth Amendments to the
              United States Constitution and Article I, Section 10, 16.

       {¶35} LaRosa points to five instances of allegedly improper evidence or improper

argument during the amenability hearing, which are addressed individually and in

combination as follows:

              [A.] Improper arguments by the state throughout the amenability
              hearing regarding “lack of remorse” violated the presumption of
              innocence and interjected improper facts into the hearings.

       {¶36} “A bindover proceeding has two components: a probable-cause

determination and an amenability determination.” State v. Whitterson, 1st Dist. Hamilton




                                            13
No. C-110207, 2012-Ohio-2940, ¶19. Here, the hearing on probable cause was waived

by LaRosa. Hence, the juvenile court found there was probable cause that LaRosa

committed the charged offenses. Therefore, a presumption of innocence is not relevant

during an amenability determination because the purpose of the amenability

determination is establishing which forum will ultimately hear the case—the juvenile

division or the general division. Once the proper forum is determined, the presumption

of innocence applies.

       {¶37} Further, the remorse of a juvenile offender is regularly discussed and

presented to the court in aid of determining whether the offender is amenable to

rehabilitation within the juvenile system. See, e.g., State v. Morgan, 153 Ohio St.3d 196,

2017-Ohio-7565, ¶8; State v. Moorer, 11th Dist. Geauga Nos. 2001-G-2353 & 2001-G-

2354, 2003-Ohio-5698, ¶45; State v. D.H., 2d Dist. Montgomery No. 26383, 2015-Ohio-

3259, ¶3; State v. McDonald, 2d Dist. Montgomery No. 11228, 1990 WL 78593, *5-6

(June 5, 1990) (expert testified that the offender “never expressed any feeling of remorse”

over the victim’s death, and the court stated that “[g]enerally, the greater the culpability of

the offense, the less amenable will the juvenile be to rehabilitation”); State v. Ferguson,

2d Dist. Montgomery No. 27032, 2017-Ohio-7930, ¶45, ¶94; State v. Anderson, 5th Dist.

Delaware No. 14 CAA 05 0034, 2015-Ohio-888, ¶18; In re D.M., 6th Dist. Lucas Nos. L-

16-1237, L-16-1238, & L-16-1270, 2017-Ohio-8768, ¶23; State v. J.L.S., 10th Dist.

Franklin No. 18AP-125, 2019-Ohio-4173, ¶72. Therefore, evidence pertaining to remorse

of an offender is not improper for presentation to a juvenile court during an amenability

determination.




                                              14
              [B.] Admission of Jacob LaRosa’s statements made at the hospital
              for consideration of the statutory factors at the amenability hearing
              was improper as there was no valid waiver of rights.

              [C.] The state improperly impeached its own witness during the
              amenability hearing under the guise of refreshing recollections.

              [D.] The state offered facts not in evidence to discredit DYS and Dr.
              Stinson’s testimony.

       {¶38} “[B]ecause the bindover proceeding is not adjudicative (the juvenile’s guilt

or innocence is not at issue), statutory and constitutional questions concerning the

admissibility of evidence are premature and need not be addressed.” State v. Whisenant,

127 Ohio App.3d 75, 85 (11th Dist.1998). “Fundamental fairness and due process are

not violated by the juvenile court’s failure to rule on or to suppress evidence obtained in

alleged violation of Miranda in this type of proceeding.” Id.

       {¶39} Further, we agree with our sister districts that a juvenile court conducting a

dispositional hearing, including a bindover hearing following a probable cause

determination, “may admit evidence that is material and relevant, including, but not limited

to, hearsay, opinion, and documentary evidence.” Juv.R. 34(B)(2). See in re: B.W., 7th

Dist. Mahoning No. 17 MA 0071, 2017-Ohio-9220, ¶46; State v. Williams, 9th Dist. Lorain

No. 91CA005054, 1991 WL 231496, *2 (Nov. 6, 1991).

       {¶40} It was not improper to allow the state to present the recorded audio made

by police of LaRosa at the hospital in the context of the amenability hearing. The juvenile

court was permitted to admit evidence that is material and relevant to LaRosa’s

amenability to transfer, including hearsay. Further, none of the evidence or statements

referenced by LaRosa on appeal were cited in the trial court’s analysis in support of or in

opposition to transfer, and it does not appear from the juvenile court’s entry that they were




                                             15
weighed by the court in making its determination. Therefore, the court’s admission of the

statements and evidence in the above instances was not improper, and LaRosa was not

prejudiced by the admissions.

              [E.] The juvenile court improperly admitted the testimony and report
              of Dr. Neuhaus and considered his testimony as an expert witness.

       {¶41} As discussed, the juvenile court has broad discretion to admit evidence that

is material and relevant during an amenability hearing. It is undisputed that the parties

stipulated to Dr. Neuhaus as an expert. He was one of three medical experts presented

to the court. To the extent his testimony offered an opinion not contained in his written

report—in this case, agreeing with the assessment of another expert who offered

testimony and a written report to the court—the juvenile court was permitted to receive

and consider it, determining the appropriate weight to give it in making an amenability

determination.

       {¶42} For all of the foregoing reasons, the trial court did not violate LaRosa’s due

process rights when conducting the amenability hearing. His second assignment of error

is without merit.

       {¶43} LaRosa’s fourth and fifth assignments of error challenge the decision to

deny his motion to suppress evidence. LaRosa’s fourth assignment of error states:

              Appellant’s Assignment of Error No. 4: The trial court erred in
              failing to [sic] items seized by the police on March 31, 2015 from
              appellant, the hospital room of appellant as the seizures were in
              violation of the Fourth and Fourteenth Amendments to the United
              States Constitution and Ohio Const., art. I, §14.

       {¶44} LaRosa argues the trial court erred by not prohibiting the state from using

the items seized by police from the hospital room on March 31, 2015, following the filing

and hearing on the motion to suppress the items and evidence.



                                            16
       {¶45} “An appellate court’s review of the grant or denial of a motion to suppress

presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶8. “During a hearing on a motion to suppress evidence, the trial judge acts

as the trier of fact and, as such, is in the best position to resolve factual questions and

assess the credibility of witnesses.” State v. Lett, 11th Dist. Trumbull No. 2008-T-0116,

2009-Ohio-2796, ¶13, citing Burnside, supra, at ¶8. “An appellate court reviewing a

motion to suppress is bound to accept the trial court’s findings of fact where they are

supported by competent, credible evidence.”          Id.   “Once the trial court’s factual

determinations are accepted, the appellate court then conducts a de novo review of the

trial court’s application of the law to those facts.” Wickliffe v. Dust, 11th Dist. Lake No.

2005-L-129, 2006-Ohio-2017, ¶8, citing State v. Dohner, 11th Dist. No. 2003-P-0059,

2004-Ohio-7242, ¶10.

       {¶46} “‘While the Fourth Amendment of the U.S. Constitution does not explicitly

state that the violation of its provisions against unlawful search and seizure will result in

suppression of the evidence obtained as a result of the violation, the U.S. Supreme Court

held that the exclusion of evidence is an essential part of the Fourth Amendment.’” State

v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068, 2015-Ohio-958, ¶17, quoting State v.

Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶29, citing Weeks v.

United States, 232 U.S. 383, 394 (1914) (overruled) and Mapp v. Ohio, 367 U.S. 643,

649 (1961). “‘The primary purpose of the exclusionary rule is to remove incentive from

the police to violate the Fourth Amendment.’” Id., quoting Casey, supra, at ¶29.

       {¶47} The Fourth Amendment to the United States Constitution guarantees that

“[t]he right of the people to be secure in their persons, houses, papers, and effects,




                                             17
against unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.”        “The

language of Article I, Section 14 of the Ohio Constitution is nearly identical, and it has

been interpreted by the Ohio Supreme Court as affording the same protection as the

Fourth Amendment.” State v. Mullen, 11th Dist. Ashtabula No. 2018-A-0018, 2018-Ohio-

5188, ¶17, citing State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, ¶11, citing State

v. Robinette, 80 Ohio St.3d 234, 238-239 (1997).

       {¶48} Under the Fourth Amendment, searches and seizures conducted without a

warrant based on probable cause are unreasonable unless the search falls within an

exception to this requirement. Katz v. United States, 389 U.S. 347, 357 (1967). “When

a defendant moves to suppress evidence recovered during a warrantless search, the

state has the burden of showing that the search fits within one of the defined exceptions

to the Fourth Amendment’s warrant requirement.” State v. Banks-Harvey, 152 Ohio St.3d

368, 2018-Ohio-201, ¶18, citing Athens v. Wolf, 38 Ohio St.2d 237, 241 (1974).

       A.     Improper seizure of Jacob’s socks, washcloth, and underwear.

       {¶49} The state argues that LaRosa’s socks, underwear, and the washcloth used

by hospital staff to clean blood from his groin were not unlawfully seized because the

seizure was done by a private person—a nurse at the hospital—rather than police

officers. We agree.

       {¶50} The trial court’s finding of facts, to which we defer in a review of the

suppression hearing, state in pertinent part:

              Officer Biddlestone who at that time was employed by the Niles
              Police Department was sent to St. Joseph’s Hospital to secure



                                            18
                Defendant, who was the suspect in the homicide of Marie Belcastro.
                Officer Biddlestone was instructed to secure Defendant and he was
                handcuffed as a suspect. Defendant’s underwear and socks were
                already taken off so that hospital staff could treat Defendant. * * *
                Furthermore, when Defendant went to use the bathroom, the nurse
                who was there to administer aid to Defendant, advised Biddlestone
                that there was blood on his groin. The nurse wiped Defendant’s groin
                clean with hospital property and there was blood on the rag. Officer
                Biddlestone retrieved this wash rag, his underwear, and socks from
                hospital staff.

         {¶51} “[I]f a person has no reasonable expectation of privacy in the property

searched, then the Fourth Amendment protections do not apply. Burneson v. Ohio State

Racing Comm., 10th Dist. Franklin No. 03AP-925, 2004-Ohio-3313, ¶30, citing State v.

Lane, 4th Dist. Athens No. 97CA47, 1998 WL 159929, *3 (Mar. 11, 1998), citing Katz,

supra.      “Furthermore, the Fourth Amendment only provides protection against

government action.” Id. at ¶31, citing State v. Henry, 1 Ohio App.3d 126, 127 (1981).

“Thus, a seizure by a private person is not prohibited by the Fourth Amendment.” Id.,

citing Coolidge v. New Hampshire, 403 U.S. 443 (1971); Irvine v. California, 347 U.S. 128

(1954); Burdeau v. McDowell, 256 U.S. 465 (1921); and State v. McDaniel, 44 Ohio

App.2d 163 (1975).

         {¶52} In State v. Drain, the Tenth Appellate District analyzed the issue of seizures

of clothing from a suspect reporting to a hospital as a victim, and stated as follows:

                It remains a question of first impression in Ohio whether an
                expectation of privacy persists in clothing or personal effects cut
                away from a purported robbery victim in a hospital emergency room
                to which he has voluntarily presented himself. Four other states,
                however, have addressed the issue, and have concluded that Fourth
                Amendment protection does not apply thereto. In People v.
                Sutherland (1980), 92 Ill.App.3d 338, the court found that “there is
                nothing in the record showing that defendant asked or even indicated
                that when his clothing was removed at the hospital it was not to be
                given to anyone else, or that he otherwise demonstrated an actual
                intent to preserve the privacy of his apparel.” Id. at 342.



                                              19
                In Floyd v. State (1975), 24 Md.App. 363, the court concluded on
                similar facts that “the bloody clothing was evidence of the shooting.
                Inasmuch as it was evidence of a crime, the police had a right to
                seize it lest it be removed from the hospital emergency room and
                destroyed.” Id. at 365. The Floyd court, rather than reaching its
                conclusion based on expectations of privacy, simply based its
                decision on exigent circumstances due to the imminent danger that
                the clothing would be destroyed or otherwise placed beyond the
                reach of police.

                In State v. Rogers (Mo.App.1979), 585 S.W.2d 498, the court
                concluded without supplementary reasoning that the police seizure
                of clothing from a purported crime victim in an emergency room is
                reasonable under the circumstances, citing United States v.
                Chadwick (1977), 433 U.S. 1.

                The case involving the most detailed reasoning, however, is that of
                Craft v. Commonwealth (Va.1980) 269 S.E.2d 797. The Virginia
                Supreme Court in Craft followed a rationale based upon the
                contention that when a purported victim is admitted to a hospital
                emergency room, and consents to the removal of his clothing
                incident to medical treatment, there can remain little expectation of
                privacy against seizure of the removed clothing. The court went even
                further, and concluded that a bullet removed from a defendant’s body
                during treatment by the attending surgeon could properly be turned
                over to the police by the doctor without any expectation of privacy on
                the part of the patient. “The defendant had no property right in the
                bullet. No search by the officers was required or effected. It was not
                necessary because the clothing and bullet were not hidden or
                concealed. The articles lawfully came into the possession of [the
                doctor] and, under the circumstances of this case, there was no
                reason why they should not have been delivered to and received by
                the officers.” Id. at 800.

State v. Drain, 10th Dist. Franklin No. 95APA03-351, 1995 WL 765169, *4-5 (Dec.29,

1995).

         {¶53} Applying the law to the trial court’s findings of fact, the seizure of LaRosa’s

clothing was done by a nurse attempting to treat him for alleged injuries. Because there

was no government action, the protections of the Fourth Amendment are not invoked.




                                              20
Likewise, the washcloth with the blood wiped from LaRosa’s groin was not LaRosa’s

property. Therefore, he had no reasonable expectation of privacy in hospital property.

       B.     Fingernail scrapings outside the warrant authorization.

       {¶54} LaRosa argues that the scrapings taken from his fingernails while at the

hospital exceeded the authorization of the search warrant. We disagree.

       {¶55} The Fourth Amendment provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” (Emphasis sic.) “‘The manifest

purpose of this particularity requirement was to prevent general searches. * * * [T]he

requirement ensures that the search will be carefully tailored to its justifications, and will

not take on the character of the wide-ranging exploratory searches the Framers intended

to prohibit.’” State v. Bangera, 11th Dist. Geauga No. 2015-G-0021, 2016-Ohio-4596,

¶31, quoting Maryland v. Garrison, 480 U.S. 79 (1987).           “By requiring a particular

description of the items to be seized, the Fourth Amendment ‘prevents the seizure of one

thing under a warrant describing another. As to what is to be taken, nothing is left to the

discretion of the officer executing the warrant.’” Id., quoting Marron v. United States, 275

U.S. 192, 196 (1927).

       {¶56} “The standard for determining the sufficiency of the description” for a search

warrant “is that ‘“the description is such that the officer with a search warrant can, with

reasonable effort ascertain and identify the place intended.”’” State v. Dalpiaz, 11th Dist.

Portage No. 2001-P-0044, 2002-Ohio-7346, ¶17, quoting State v. Pruitt, 97 Ohio App.3d

258, 261 (11th Dist.1994), quoting Steele v. United States, 267 U.S. 498, 503 (1925).




                                             21
       {¶57} The dispute in the present matter is whether “hand swabs” encompasses

“fingernail scrapings.” We agree with the trial court’s determination that it does. The

warrant authorized police to search and retrieve evidence from LaRosa’s hands. A

reasonable interpretation of that language would include the fingernails, as they are

attached to and a part of the hand. There is no danger here, as the Fourth Amendment

contemplated, of a seizure of one thing under a warrant describing another, or an exercise

of discretion by the officer executing the warrant to search without authorization. We

agree with the trial court that an analogy can be drawn from the “description is such that

the officer with a search warrant can, with reasonable effort ascertain and identify the

place intended” standard used to obtain a search warrant for a premise, and the fingernail

scrapings in the matter sub judice.

       {¶58} Therefore, it was not error for the trial court to deny the motion to suppress.

LaRosa’s fourth assignment of error is without merit.

       {¶59} LaRosa’s fifth assignment of error states:

              Appellant’s Assignment of Error No. 5: Appellant was denied the
              effective assistance of counsel when counsel failed to file a motion
              to suppress evidence seized pursuant to warrant when the warrant
              was based upon improperly obtained statements from Jacob in
              violation of Fourth, Fifth and Fourteenth Amendments to the United
              States Constitution and Ohio Const., art. I, §§1, 10 and 16.

       {¶60} On appeal, LaRosa asserts that trial counsel was ineffective because they

failed to challenge the search warrant used to obtain the buccal swab, hand swab, and

swab of LaRosa’s penis. LaRosa claims that the statements he made at the hospital,

which the state agreed not to use at trial, were the basis for the warrant.

       {¶61} In order to prevail on an ineffective assistance of counsel claim, an appellant

must demonstrate that trial counsel’s performance fell “below an objective standard of



                                            22
reasonable representation and, in addition, prejudice arises from counsel’s performance.”

State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus (adopting the

test set forth in Strickland v. Washington, 466 U.S. 668 (1984)). “[T]here is no reason for

a court deciding an ineffective assistance claim to approach the inquiry in the same order

or even to address both components of the inquiry if the defendant makes an insufficient

showing on one.” Id. at 143. There is a general presumption that trial counsel’s conduct

is within the broad range of professional assistance. Id. at 142. Debatable trial tactics

generally do not constitute deficient performance. State v. Phillips, 74 Ohio St.3d 72, 85

(1995).

      {¶62} In order to show prejudice, the appellant must demonstrate a reasonable

probability that, but for counsel’s error, the result of the proceeding would have been

different. Bradley, supra, at paragraph three of the syllabus.

      {¶63} LaRosa’s challenge to the search warrant is an attack on the affidavit used

to secure the warrant, which contained the statements he made at the hospital. LaRosa

cannot show he was prejudiced by trial counsel’s failure to challenge the search warrant.

      {¶64} “The Supreme Court of the United States, in Franks v. Delaware, set forth

a two-part test to be applied in addressing such challenge to affidavits offered in support

of a search warrant.” Bangera, supra, at ¶55.        “First, the defendant must make a

preliminary showing that the affiant included in his affidavit false statements that were

made deliberately or with reckless disregard for their truth.” Id.; see also State v. Kidd,

11th Dist. Lake No. 2006-L-193, 2007-Ohio-4113, ¶42.

      {¶65} “Second, the court must determine if the allegedly false statements were

necessary to the issuing judge’s finding of probable cause.” Id., citing Franks, supra; see




                                            23
also State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶17, quoting United States v.

Karo, 468 U.S. 705, 719 (1984) (“after excising tainted information from a supporting

affidavit, ‘if sufficient untainted evidence was presented in the warrant affidavit to establish

probable cause, the warrant was nevertheless valid’”) and State v. Jackson, 11th Dist.

Lake No. 9-130, 1983 WL 6126, *2 (“The Franks decision also stands for the proposition

that if the questioned material is found to be false and is set aside and there remains

sufficient content in the affidavit to support a finding of probable cause, then the search

warrant is valid.”).

       {¶66} Setting aside the statements made at the hospital, there was still

overwhelming evidence in the affidavit supporting the judge’s finding of probable cause

to issue a search warrant. LaRosa had blood on his hands and clothing, as well as his

groin. He presented to the hospital with no injuries justifying the blood. A neighbor had

video evidence of LaRosa near the victim’s property around the suspected time of the

crimes. Following the issuance of a valid warrant and consent from the owner of the

residence, police recovered clothing, shoes, and glasses belonging to LaRosa which had

a substance on them believed to be blood. All of these facts, which were stated in the

affidavit submitted for the search warrant, support a finding of probable cause, even

without the statements LaRosa made at the hospital.

       {¶67} Because LaRosa has not established that the result of the proceedings

would have been different had counsel challenged the affidavit, he cannot prevail on his

claim of ineffective assistance of counsel. His fifth assignment of error is without merit.

       {¶68} LaRosa’s seventh assignment of error challenges the voluntary nature of

his no contest plea. It states:




                                              24
              Appellant’s Assignment of Error No. 7: Jacob’s plea was not
              knowingly intelligently and voluntarily entered because the trial court
              failed to advise Jacob of sex offender registration, requirements at
              the time of the plea rending [sic] the plea involuntary in violation of
              the Fifth, Sixth and Fourteenth Amendment to the United States
              Constitution.

       {¶69} “‘When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.’” State v. Gensert, 11th Dist. Trumbull No. 2015-T-0084, 2016-

Ohio-1163, ¶8, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). “In order for a plea

to be knowingly, intelligently, and voluntarily entered, a defendant must be ‘informed in a

reasonable manner at the time of entering his guilty plea of his rights to a trial by jury and

to confront his accusers, and his privilege against self-incrimination, and his right of

compulsory process for obtaining witnesses in his behalf.’” Id., quoting State v. Ballard,

66 Ohio St.2d 473, 478 (1981), interpreting Boykin v. Alabama, 395 U.S. 238, 243 (1969).

       {¶70} Criminal Rule 11(C) provides, in relevant part, as follows:

              (2) In felony cases the court may refuse to accept a plea of guilty or
              a plea of no contest, and shall not accept a plea of guilty or no contest
              without first addressing the defendant personally and doing all of the
              following:

                     (a) Determining that the defendant is making the plea
                     voluntarily, with understanding of the nature of the charges
                     and of the maximum penalty involved, and, if applicable, that
                     the defendant is not eligible for probation or for the imposition
                     of community control sanctions at the sentencing hearing.

                     (b) Informing the defendant of and determining that the
                     defendant understands the effect of the plea of guilty or no
                     contest, and that the court, upon acceptance of the plea, may
                     proceed with judgment and sentence.




                                             25
                    (c) Informing the defendant and determining that the
                    defendant understands that by the plea the defendant is
                    waiving the rights to jury trial, to confront witnesses against
                    him or her, to have compulsory process for obtaining
                    witnesses in the defendant’s favor, and to require the state to
                    prove the defendant’s guilt beyond a reasonable doubt at a
                    trial at which the defendant cannot be compelled to testify
                    against himself or herself.

      {¶71} The Ohio Supreme Court has instructed that a trial court must strictly

comply with Crim.R. 11(C) as it relates to the waiver of constitutional rights. State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶18, citing State v. Ballard, 66 Ohio St.2d

473, 479 (1981). Failure to literally comply with the language of Crim.R. 11(C)(2)(c) does

not, however, invalidate a plea agreement so long as the record demonstrates that the

trial court explained or referred to the constitutional rights “‘“in a manner reasonably

intelligible to that defendant.”’” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130,

¶14, quoting Veney, supra, at ¶27 (emphasis sic), quoting Ballard, supra, at paragraph

two of the syllabus. “[W]ith respect to the nonconstitutional notifications required by

Crim.R. 11(C)(2)(a) and 11 (C)(2)(b), substantial compliance is sufficient.” Veney, supra,

at ¶14, citing State v. Stewart, 51 Ohio St.2d 86 (1977).

      {¶72} The Ohio Supreme Court has held “an alleged ambiguity during a Crim.R.

11 oral plea colloquy may be clarified by reference to other portions of the record,

including the written plea, in determining whether the defendant was fully informed of the

right in question.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, ¶25.

      {¶73} Contrary to LaRosa’s contention, the record reflects he was advised by the

trial court about the sex offender registration requirements prior to pleading no contest.

The plea agreement LaRosa signed at the plea hearing specifically stated the




                                            26
requirements for Tier III sex offender status. Further, the court made the following

statement before the plea was accepted:

            The Court: Do you understand the serious—and you also have to
            be classified as a Tier III sex offender. Do you understand the
            penalties involved for each one of these crimes?

            LaRosa: Yes, Your Honor.

            The Court: And the seriousness of the offenses?

            LaRosa: Yes, Your Honor.

            ***
            The Court: How do you plead to the amended indictment?

            LaRosa: No contest.

            The Court: I’m showing you this document called Finding on No
            Contest Plea to Amended Indictment, is that your signature?

            LaRosa: Yes, Your Honor.

            The Court: Did you sign that freely and voluntarily?

            LaRosa: Yes, Your Honor.

            The Court:    Any promises or threats made to you to sign this
            document?

            LaRosa: No, Your Honor.

            The Court: Do you understand what’s contained in this document?

            LaRosa: Yes, Your Honor.

            The Court: And what I’ve explained to you?

            LaRosa: Yes, Your Honor.

            The Court: Do you have any questions whatsoever?

            LaRosa: No, Your Honor.

            The Court: Do you still wish to plead no contest?



                                          27
                LaRosa: Yes, Your Honor.

          {¶74} The Finding on No Contest Plea to Amended Indictment signed by LaRosa

states:

                I understand that I am pleading no contest to, and will be found guilty
                to, a sexually oriented offense in Count 4. I also understand that upon
                conviction I will be classified as a Tier III Sex Offender. I
                understand that upon conviction (or release from prison, if
                applicable), I will be required to register, in person, with the sheriff of
                the county(ies) where I establish residence, employment, and
                education. I will be required to verify my place of residence,
                employment and education, in person, with the sheriff every 90 days
                for life. I understand that as a Tier III Sex Offender, I am subject to
                community notification. [Emphasis sic.]

          {¶75} Any suggestion that LaRosa was unaware that he was required to register

as a Tier III sex offender is unsupported by the record. The trial court duly advised

LaRosa of the sex offender registration requirement at the time of his no contest plea,

which is also contained in the record in the written plea he signed.

          {¶76} LaRosa has not established that his no contest plea was entered

involuntarily. His seventh assignment of error is without merit.

          {¶77} LaRosa’s third and sixth assignments of error challenge the sentence

LaRosa received following the no contest plea and mitigation hearing.

          {¶78} LaRosa’s third assignment of error states:

                Appellant’s Assignment of Error No. 3: The trial court erred when
                it imposed a sentence of life without the possibility of parole based
                upon factual findings which are inconsistent with the requirements
                [sic] the Eighth and Fourteenth Amendments to the United States
                Constitution and Ohio Const., art. I, §9.

          {¶79} LaRosa argues his sentence of life in prison without parole violated the

prohibition against cruel and unusual punishment pursuant to the Eighth and Fourteenth




                                                28
Amendments to the United States Constitution and Article I, Section 9 of the Ohio

Constitution. He relies on the “evolving standards” regarding juvenile offenders following

the United States Supreme Court decisions in Roper v. Simmons, 543 U.S. 551 (2005),

syllabus (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty

on offenders who were under the age of 18 when their crimes were committed.”); Graham

v. Florida, 560 U.S. 48, 82 (2010) (“The Constitution prohibits the imposition of a life

without parole sentence on a juvenile offender who did not commit homicide.”); and Miller

v. Alabama, 567 U.S. 460, 489 (2012) (“Graham, Roper, and our individualized

sentencing decisions make clear that a judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest possible penalty for juveniles.”).

LaRosa also cites Justice Frankfurter’s 1950 dissent in United States v. Rabinowitz, 339

U.S. 56 (1950), a case which was overruled 50 years ago and dealt with the

reasonableness of a search warrant in an adult forgery proceeding. We find Rabinowitz

wholly inapposite to the present proceeding.

      {¶80} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise

modify a sentence that is appealed under this section or may vacate the sentence and

remand the matter to the sentencing court for resentencing * * * if it clearly and

convincingly finds * * * [t]hat the record does not support the sentencing court’s findings

under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise

contrary to law.” R.C. 2953.08(G)(2)(a)-(b).




                                            29
       {¶81} “‘A punishment does not violate the constitutional prohibition against cruel

and unusual punishments, if it be not so greatly disproportionate to the offense as to

shock the sense of justice of the community.’” State v. Dioneff, 11th Dist. Ashtabula No.

2006-A-0063, 2007-Ohio-3387, ¶79, quoting State v. Chaffin, 30 Ohio St.2d 13 (1972),

paragraph three of the syllabus. “‘Eighth Amendment violations are rare and instances

of cruel and unusual punishment are limited to those punishments, which, under the

circumstances, would be considered shocking to any reasonable person.’” Id., quoting

State v. Rhodes, 11th Dist. Lake No. 2000-L-089, 2001-Ohio-8693. “Sentences that fall

within the statutory range cannot amount to cruel and unusual punishment.” State v.

Lane, 11th Dist. Geauga No. 2013-G-3144, 2014-Ohio-2010, ¶71 (citations omitted).

       {¶82} Here, a sentence of life without parole is within the statutory range for

aggravated murder in Ohio. Therefore, the sentence cannot amount to cruel and unusual

punishment. Also, it is clear the trial court carefully and thoroughly considered the Miller

factors for juvenile sentencing in detail, along with all the other evidence and

circumstances, before issuing a sentence.

       {¶83} The trial court made the following statements in its sentencing entry:

              The Court has considered the record, including all evidence
              presented at the April sentencing hearing, oral statements, the
              allocution of the Defendant, the pre-sentence investigation report,
              and any victim impact statements, the briefs of all parties, as well as
              the principles and purposes of sentencing under O.R.C. Section
              2929.11, and has balanced the seriousness and recidivism factors
              of O.R.C. Section 2929.12.

              In imposing this sentence, the Court fully incorporates, by reference,
              the Judgment Entry memorializing its findings, filed on October 12,
              2018. The Court incorporates all findings previously made in that
              entry with regard to any and all factual and legal issues concerning
              the sentence imposed [sic] this case.




                                            30
              As detailed within the October 12, 2018 Judgment Entry, the Court
              has considered all relevant factors pursuant to Miller v. Alabama, 132
              S.Ct. at 2464, 183 L.Ed.2d 407 and State v. Long, 138 Ohio St. 3d
              478, 8 N.E. 890 (2014).

       {¶84} Further, as this court has previously held, the Roper, Graham, and Miller

decisions are inapplicable here because “none holds that the sentence of a juvenile

homicide offender to a discretionary sentence of life without parole constitutes cruel and

unusual punishment.” Lane, supra, at ¶75. “To the contrary, the Supreme Court in Miller,

supra, stated that a sentencing court is not precluded from imposing a life-without-parole

sentence on a juvenile homicide offender.” Id. at ¶80 (emphasis sic) (citations omitted).

       {¶85} Therefore, the trial court did not impose a sentence inconsistent with the

Eighth and Fourteenth Amendments. LaRosa’s third assignment of error is without merit.

       {¶86} LaRosa’s sixth assignment of error states:

              Appellant’s Assignment of Error No. 6: The record clearly and
              convincingly does not support the trial court’s findings in support of
              consecutive sentences.

       {¶87} R.C. 2929.41, which governs multiple sentences, provides, in pertinent part:

“Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term,

or sentence of imprisonment shall be served concurrently with any other prison term, jail

term, or sentence of imprisonment imposed by a court of this state[.]” R.C. 2929.41(A).

Therefore, a presumption exists in favor of concurrent sentencing absent the applicable

statutory exception.

       {¶88} Pursuant to R.C. 2929.14(C)(4), a trial court may order separate prison

terms for multiple offenses to be served consecutively only if the court finds it “necessary

to protect the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to



                                             31
the danger the offender poses to the public[.]” The trial court must also find that one of

the following statutory factors applies:

              (a) The offender committed one or more of the multiples offenses
              while the offender was awaiting trial or sentencing, was under a
              sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
              of the Revised Code, or was under post-release control for a prior
              offense.

              (b) At least two of the multiple offenses were committed as part of
              one or more courses of conduct, and the harm caused by two or
              more of the multiple offenses so committed was so great or unusual
              that no single prison term for any of the offenses committed as part
              of any of the courses of conduct adequately reflects the seriousness
              of the offender’s conduct.

              (c) The offender’s history of criminal conduct demonstrates that
              consecutive sentences are necessary to protect the public from
              future crime by the offender.

       {¶89} Regarding the imposition of consecutive sentences, the trial court stated the

following during the sentencing hearing:

              Said periods of incarceration on Counts 2, 3, and 4 are to be served
              consecutively to each other and to Count 1. The Court finds that
              because the harm was so great and unusual that a single term does
              not adequately reflect the seriousness of the defendant’s conduct,
              consecutive terms are necessary to protect the public and to
              adequately punish the defendant. Further, the Court finds that
              consecutive terms are not disproportionate to defendant’s conduct
              and to the public danger posed by this defendant.

The judgment entry entered for sentencing also indicates the same. Therefore, the trial

court did state appropriate statutory grounds for imposing consecutive prison sentences.

       {¶90} When the trial court properly sets forth the statutory requirements that allow

for imposition of consecutive sentences, our review is limited to whether any of the

findings made by the court are clearly and convincingly not supported by the record. State

v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶20; State v. Marcum, 146




                                            32
Ohio St.3d 516, 2016-Ohio-1002, ¶23. In doing so, we keep in mind that the “trial court

is not required to give any particular weight or emphasis to a given set of circumstances”

when considering the statutory factors. State v. DelManzo, 11th Dist. Lake No. 2007-L-

218, 2008-Ohio-5856, ¶23.

       {¶91} LaRosa’s argument on appeal is straightforward: he cannot pose a danger

to the public because he has already received a sentence of life without the possibility of

parole on Count 1. Therefore, consecutive sentences are not warranted. However, this

court and other courts have upheld an imposition of consecutive sentences even where

a life without the possibility of parole sentence is imposed on a defendant when the record

supports such a finding. See Lane, supra, at ¶120-132; State v. Roark, 3d. Dist. Mercer

No. 10-14-11, 2015-Ohio-3811, ¶24. LaRosa has offered no argument that convinces us

to abandon precedent on this issue.

       {¶92} We do not clearly and convincingly find that the record does not support the

trial court’s findings under R.C. 2929.14(C).     The trial court did not err in ordering

consecutive service of LaRosa’s sentences.

       {¶93} LaRosa’s sixth assignment of error is without merit.

       {¶94} The judgment of the Trumbull County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.




                                            33
