[Cite as In re D.J., 2018-Ohio-569.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: D.J. C.A. No. 28472
28473
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DL 11 11 2532
DECISION AND JOURNAL ENTRY
Dated: February 14, 2018
HENSAL, Presiding Judge.
{¶1} D.J. appeals judgments of the Summit County Court of Common Pleas, Juvenile
Division, that invoked the adult portion of his serious youthful offender dispositional sentence
and sentenced him to life imprisonment with the possibility of parole after 25 years. For the
following reasons, this Court affirms.
I.
{¶2} When D.J. was 15, he anally raped his 3-year-old sister, which caused injuries
that resulted in her death. The juvenile court adjudicated him guilty of rape and felony murder
and designated him a serious youthful offender. It committed him to the Ohio Department of
Youth Services (DYS) and stayed his adult sentence of life imprisonment with the possibility of
parole after 25 years. D.J. appealed his adjudication. He also petitioned for post-conviction
relief.
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{¶3} D.J. behaved well during his commitment. He completed high school, took
college classes, began an apprenticeship, and even helped tutor others. In light of his ongoing
legal proceedings, however, he declined to enroll in sex offender treatment. Eventually, he
voluntarily dismissed his appeal and withdrew his petition.
{¶4} Following the end of D.J.’s appeal and petition, the juvenile court wrote that his
sex offender treatment would begin shortly. D.J. did not decide to enter the program, however,
until nine months before he was going to turn 21. Despite attending and participating in the first
part of the program, D.J. did not meet its goals because he could not identify the triggers for his
conduct. He, therefore, could not continue into the second part of the program, which helps
participants develop strategies to manage their triggers.
{¶5} Approximately 50 days before D.J.’s twenty-first birthday, the State moved for
the juvenile court to invoke the adult portion of D.J.’s sentence. Following an evidentiary
hearing, the juvenile court granted its motion, finding that D.J., by failing to complete sex
offender treatment, engaged in conduct that poses a substantial risk to the safety of the
community. The court also found that he could not be rehabilitated before turning 21. It
subsequently imposed D.J.’s adult sentence of life imprisonment with the opportunity for parole
after 25 years. D.J. has appealed, assigning five errors.
II.
ASSIGNMENT OF ERROR I
THE STATE CANNOT INITIATE THE REQUEST TO INVOKE THE ADULT
PORTION OF A CHILD’S SYO WHEN THE CHILD IS IN DYS’S
INSTITUTIONAL CUSTODY, IN VIOLATION OF R.C. 2152.14(A).
{¶6} D.J. argues that the State’s motion to invoke was improper under Revised Code
Section 2152.14(A). That section provides, in part, that “[t]he director of youth services may
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request the prosecuting attorney of the county in which is located the juvenile court that imposed
a serious youthful offender dispositional sentence * * * to file a motion with that juvenile court
to invoke the adult portion of the dispositional sentence * * *.” According to D.J., under the
statute, only the director of DYS can initiate the request to invoke the adult part of the
dispositional sentence for a serious youthful offender. Here, however, the prosecutor sent a letter
to DYS, requesting that it join in a motion to invoke. D.J. contends that DYS’s staff was actually
preparing him for release into the community until the prosecutor interfered in the process.
{¶7} Section 2152.14 does not provide any guidance for how the director of DYS
should decide whether to request that the prosecuting attorney move for the juvenile court to
invoke the adult part of a dispositional sentence. The statute’s only requirements are that the
juvenile be at least 14 years old, that the juvenile be in the custody of or has escaped custody of
DYS, and that the juvenile be serving the juvenile part of a serious youthful offender
dispositional sentence. R.C. 2152.14(A)(2). D.J. has not pointed to any language in Section
2152.14 that prohibits the prosecution from attempting to influence the director’s exercise of
discretion under Section 2152.14(A). D.J.’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE JUVENILE COURT ERRED WHEN IT DETERMINED THAT D.J.
ENGAGED IN CONDUCT THAT CREATES A SUBSTANTIAL RISK TO
THE SAFETY AND SECURITY OF THE INSTITUTION, COMMUNITY, OR
THE VICTIM IN THE ABSENCE OF CLEAR AND CONVINCING
EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE 1, SECTION 16 ,
OHIO CONSTITUTION; AND, R.C. 2152.14(E).
{¶8} D.J. next argues that there was insufficient evidence to support the juvenile
court’s findings under Section 2152.14(E)(1). That section provides:
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The juvenile court may invoke the adult portion of a person’s serious youthful
offender dispositional sentence if the juvenile court finds all of the following on
the record by clear and convincing evidence:
(a) The person is serving the juvenile portion of a serious youthful offender
dispositional sentence.
(b) The person is at least fourteen years of age and has been admitted to a
department of youth services facility, or criminal charges are pending against the
person.
(c) The person engaged in the conduct or acts charged under division (A), (B), or
(C) of this section, and the person’s conduct demonstrates that the person is
unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.
R.C. 2152.14(E)(1). Clear and convincing evidence is that “which will produce in the mind of
the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. The conduct referred to in
Section 2152.14(E)(1)(c) includes that “[t]he person has engaged in conduct that creates a
substantial risk to the safety or security of the institution, the community, or the victim.” R.C.
2152.14(A)(2)(b).
{¶9} The juvenile court found that D.J. had been defiant about his need to engage in
sex offender treatment and that he had failed to complete such treatment. It also found that,
following the exhaustion of his appeals, D.J. had 29 months to complete sex offender treatment,
which typically takes between 9 and 18 months. The court found that D.J. delayed entering the
program and inquired at one point about whether he could fake his treatment. It also found that,
although D.J. eventually began the treatment program, he could not understand what he needed
to do to prevent a relapse of his conduct. In conclusion, the court found that, “[a]bsent an
understanding of his triggers, his cycle and what he needs to do to refrain from similar offenses,
the Court finds that [D.J.] has engaged in conduct that poses a[ ] substantial risk to the safety of
the community.”
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{¶10} The State presented testimony that D.J. was disengaged from his emotions. He
resisted taking responsibility for harming his sister and failed to complete an appropriate victim
apology letter, writing it to his parents instead of his sister. Although he could understand the
offense cycle academically, he was unable to plug his own offense into the cycle to understand
what triggered his offense. Specifically, he was unable to break down the series of events that
led up to the offense, including the things that caused him to start thinking about doing it and the
thinking errors that he made along the way. The State’s witnesses testified that D.J.’s effort
during sex offender treatment sessions was limited and that his participation was minimal.
Because of his failure to master the first phase’s skills and material, he could not progress into
the second phase of the program where he would have developed a relapse prevention plan. The
staff member who conducted D.J.’s class was concerned about D.J.’s ability to function in all
aspects of his life back in the community without an understanding of his triggers and without a
relapse prevention plan in place.
{¶11} The word “conduct” is not defined in Chapter 2152, but it commonly refers to
someone’s “[p]ersonal behavior, whether by action or inaction[.]” Black’s Law Dictionary 315
(8th Ed.2004). D.J. intentionally waited until only 9 months before he turned 21 to begin sex
offender treatment, which was too late for him to finish it in light of his minimal participation
and emotional detachment from his offense. Upon review of the record, we conclude that there
was sufficient evidence for the juvenile court to find by clear and convincing evidence that D.J.,
in failing to complete sex offender treatment, engaged in conduct that created a substantial risk to
the safety of the community.
{¶12} D.J. also argues that the court’s finding was against the manifest weight of the
evidence. We apply the same manifest weight standard in both criminal and civil cases. When
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conducting a manifest weight review, we are required to “review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial
ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence
pertains to the greater amount of credible evidence produced in a trial to support one side over
the other side. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). An appellate court should
only exercise its power to reverse a judgment as against the manifest weight of the evidence in
exceptional cases. State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing
Otten at 340.
{¶13} In addition to his sufficiency argument, D.J. argues that the juvenile court’s
findings were against the manifest weight of the evidence because he exhibited excellent
behavior at DYS, DYS’s staff was preparing for his release into the community, and there was
no evidence that, without treatment, he presented a great risk of recidivism. We note that, even
if most of DYS’s staff, generally, was preparing D.J. for his release into the community, the
instructor of D.J.’s sex offender treatment class testified that he was concerned about D.J.’s
ability to function back in the community because he did not understand his triggers and did not
have a relapse prevention plan in place. Upon careful review of the record, we conclude that the
juvenile court’s findings were not against the manifest weight of the evidence. D.J.’s second
assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS
UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE JUVENILE
COURT TO MAKE AN INDIVIDUALIZED DETERMINATION ABOUT
D.J.’S SENTENCE OR THE ATTRIBUTES OF HIS YOUTH, IN VIOLATION
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OF HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL
PUNISHMENT, AS GUARANTEED BY THE EIGHTH AMENDMENT TO
THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 9, OHIO
CONSTITUTION.
{¶14} D.J. next argues that his adult sentence violates his right to be free from cruel and
unusual punishment because the juvenile court was not allowed to consider his age or other
mitigating factors in determining his sentence. Because D.J. committed rape and murder, the
juvenile court was required to impose an adult sentence of 25 years to life imprisonment. R.C.
2152.13(D)(1)(a); R.C. 2971.03(B)(1)(c).
{¶15} The State argues that D.J. forfeited his constitutional argument because he did not
raise it at the time the trial court initially imposed his sentence. It points out that in In re Feaster,
9th Dist. Summit No. 25395, 2011-Ohio-4222, this Court recognized that, when a juvenile court
designates a serious youthful offender, it imposes an actual prison sentence, even though the
sentence is stayed. Id. at ¶ 11-12. The State also argues that D.J.’s argument was available to
him, noting that the United States and Ohio Supreme Court decisions that D.J. relies on pre-date
his disposition as a serious youthful offender.
{¶16} D.J. argues that he should be permitted to raise his constitutionality argument
because his adult prison sentence did not become a reality until the juvenile court imposed it in
November 2016. He also notes that Section 2152.14(E)(2) authorizes a juvenile court to modify
the adult portion of a person’s serious youthful offender sentence at the time the court invokes it.
He further notes that, in Feaster, this Court allowed Tyree Feaster to withdraw his plea
agreement after the State moved to invoke the adult portion of his sentence because the juvenile
court had not properly advised him of post-release control. Id. at ¶ 13.
{¶17} Under the “doctrine of res judicata, a valid final judgment on the merits bars all
subsequent actions based on any claim arising out of the transaction or occurrence that was the
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subject matter of the previous action.” State v. Hartman, 9th Dist. Medina No. 15CA0090-M,
2017-Ohio-1089, ¶ 23, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995). “Res
judicata applies to any issue that was raised or could have been raised in a criminal defendant’s
prior appeal from his conviction.” Id., citing State v. Perry, 10 Ohio St.2d 175, 180 (1967).
“The doctrine serves to preclude a defendant who has had his day in court from seeking a second
on that same issue. In so doing, res judicata promotes the principles of finality and judicial
economy by preventing endless relitigation of an issue on which a defendant has already
received a full and fair opportunity to be heard.” Id., quoting State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, ¶ 18.
{¶18} The juvenile court originally imposed D.J.’s adult sentence in 2013, but it stayed
the sentence pending D.J.’s completion of his juvenile disposition. On appeal from that entry,
D.J. could have argued that the adult sentence the court imposed was unconstitutional. His
argument, therefore, is barred under the doctrine of res judicata. Section 2152.14(E)(2) only
allows a juvenile court to modify an adult sentence if the sentence is not mandatory, but D.J.’s
sentence was mandatory. Accordingly, it does not change this Court’s res judicata analysis.
Feaster also does not support D.J.’s argument because it involved whether Mr. Feaster could
withdraw his plea after the State conceded that his sentence was void. Feaster at ¶ 3. D.J.’s
third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.J. AS A TIER III
JUVENILE OFFENDER REGISTRANT BECAUSE IT LACKED
JURISDICTION TO ISSUE THE ORDER, IN VIOLATION OF 2151.14(F)
AND IN RE J.B., 134 OHIO ST.3D 538, 2012-OHIO-5675, 983 N.E.2D 1295,
¶1.
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{¶19} D.J. next argues that the juvenile court did not have authority to classify him as a
Tier III juvenile offender registrant because it did not classify him until after it invoked the adult
portion of his serious youthful offender dispositional sentence. In support of his argument, D.J.
cites State ex rel. Jean-Baptist v. Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697.
{¶20} In Kirsch, the Ohio Supreme Court held that a juvenile court cannot classify a
child as a juvenile offender registrant under Section 2152.83 after the child has been released
from a secured facility, noting that the statute requires the classification happen “at the time of
the child’s release.” Id. at ¶ 32, citing R.C. 2152.83(A)(1). Here, the juvenile court adjudicated
D.J. as a Tier III sex offender in the same entry that ended D.J.’s commitment to DYS. We,
therefore, conclude that the juvenile court’s classification of D.J. was not error under Kirsch.
{¶21} D.J. also argues that the juvenile court lost jurisdiction to classify him as a
juvenile offender registrant once it invoked the adult portion of his serious youthful offender
dispositional sentence. There is no language in Section 2152.14, however, concerning juvenile
offender registration and no language in Section 2152.83 that prohibits a juvenile court from
classifying a child if the adult portion of the child’s serious youthful offender disposition has
been invoked. The juvenile court has jurisdiction “[t]o conduct the hearings, and to make the
determinations, adjudications, and orders authorized or required under sections 2152.82 to
2152.86 and Chapter 2950. of the Revised Code regarding a child who has been adjudicated a
delinquent child[.]” R.C. 2151.23(A)(15). D.J. was still a “child” at the time of the juvenile
court’s classification order because he was under 21 and had been adjudicated a delinquent child
before turning 18. R.C. 2152.02(C)(1), (6). We, therefore, conclude that D.J. has not
demonstrated that the juvenile court lacked jurisdiction to classify him as a Tier III juvenile
offender registrant. D.J.’s fourth assignment of error is overruled.
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ASSIGNMENT OF ERROR V
THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.J. AS AN
ADULT TIER III SEX OFFENDER REGISTRANT, PURSUANT TO THE
ADULT STATUTES, IN VIOLATION OF R.C. 2152.82; 2152.83; 2152.84;
2152.85; AND, 2950.01(G), (M).
{¶22} D.J.’s final argument is that the juvenile court incorrectly classified him as an
adult sex offender registrant. He argues that those classifications do not apply to children,
including those designated as a serious youthful offender. Specifically, D.J. argues that the adult
registrant provisions only apply to those who have been convicted of an offense, and his
adjudication as a delinquent child is not the same as a conviction.
{¶23} “[A] trial court speaks only through its journal entries.” State v. Leason, 9th Dist.
Summit No. 25566, 2011-Ohio-6591, ¶ 8. In its entry, the juvenile court wrote that D.J. “has
been convicted of a sexually-oriented offense” even though he, instead, had been adjudicated
delinquent for committing rape and murder. The court went on, however, to order D.J. “to be
adjudicated a Tier III Sex Offender * * *.” The definition of a “Tier III sex offender * * *”
includes “[a] sex offender who * * * has been adjudicated a delinquent child for committing any
sexually oriented offense and who a juvenile court, pursuant to section 2152.82, 2152.83,
2152.84, or 2152.85 * * * classifies a tier III sex offender * * * relative to the offense.” R.C.
2950.01(G)(3). Although the juvenile court used the word “adjudicate” in its entry instead of
“classify,” the difference between the two words in this context is not significant. In addition,
D.J. has not identified any difference in the requirements placed on a Tier III sex offender who
receives that designation automatically for being convicted of certain offenses as an adult and
juveniles who receive that designation under Section 2950.01(G)(3). Accordingly, upon review
of the juvenile court’s entry, we conclude that any error in the court’s word choice was harmless.
D.J.’s fifth assignment of error is overruled.
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III.
{¶24} D.J.’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CALLAHAN, J.
CONCURS.
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CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶25} The landscape regarding juvenile justice has changed dramatically in the last ten
years. This case is an example of the difficulty in attempting to apply juvenile and adult
rehabilitative statutes and theories when a child commits a serious offense. I encourage the
Supreme Court and legislature to address these matters to provide necessary guidance to the
juvenile courts.
APPEARANCES:
CHARLYN BOHLAND, Assistant State Public Defender, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.