[Cite as In re M.B., 2018-Ohio-4334.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106434
IN RE: M.B.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-15111599
BEFORE: E.T. Gallagher, P.J., Stewart, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: October 25, 2018
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
BY: Timothy Hackett
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
James J. Hofelich
614 West Superior Avenue, Suite 1310
Cleveland Ohio 44113
Christopher R. Lenehan
Christopher R. Lenehan Inc., Co.
2035 Crocker Road, Suite 104
Westlake, Ohio 44145
William T. McGinty
McGinty, Hilow & Spellacy Co., L.P.A.
614 West Superior Avenue, Suite 1300
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Chadwick P. Cleveland
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
(continued)
Also Listed
A.B. (Mother), pro se
2350 East 61st Street
Cleveland, Ohio 44104
Guardians Ad Litem
Amanda J. Hawkins
1801 Euclid Avenue #A089
Cleveland, Ohio 44115
Thomas Kozel
P.O. Box 534
North Olmsted, Ohio 44070
ON RECONSIDERATION1
EILEEN T. GALLAGHER, P.J.:
{¶1} Appellant, M.B., appeals from the judgment of the Cuyahoga County Court of
Common Pleas, Juvenile Division, granting the state’s motion to invoke the adult portion of
M.B.’s serious youth offender sentence pursuant to R.C. 2152.14(A). He raises five
assignments of error for review:
1. The juvenile court erred when it entertained an objection from the Ohio
Department of Youth Services (“ODYS”) during cross-examination, because
ODYS was not a proper party to the proceeding, in violation of Juv.R. 2(Y),
Civ.R. 24, and the Due Process Clause of the Fifth and Fourteenth Amendments
to the U.S. Constitution, and Article I, Section 16 of the Ohio Constitution.
2. The juvenile court erred when it sustained ODYS’s improper objection
because a testifying witness’ prior conversation with her employer’s attorney is
not a privileged communication under R.C. 2317.02(A).
1
The original decision in this appeal, In re: M.B., 8th Dist. Cuyahoga No. 106434, 2018-Ohio-3311, released on
August 16, 2018, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in
this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
3. The juvenile court violated M.B.’s constitutional rights to confrontation and
cross-examination, in violation of the Sixth and Fourteenth Amendments to the
U.S. Constitution, and Article I, Section 10 of the Ohio Constitution.
4. The juvenile court erred when it determined, in the absence of clear and
convincing evidence, that M.B. was unlikely to be rehabilitated during the
remainder of the court’s jurisdiction.
5. M.B. was denied his constitutional right to the effective assistance of counsel,
in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution,
and Article I, Section 10 of the Ohio Constitution.
{¶2} After careful review of the record and relevant case law, we affirm the juvenile
court’s judgment.
I. Procedural History
{¶3} On August 20, 2015, the state filed a complaint, alleging that then 15-year-old M.B.
was a delinquent child for committing three counts of aggravated robbery in violation of R.C.
2911.01(A)(1); three counts of kidnapping in violation of R.C. 2905.01(A)(2); and three counts
of robbery in violation of R.C. 2911.02(A)(2). Each count carried one- and three-year firearm
specifications.
{¶4} On August 25, 2015, the state filed a motion to relinquish jurisdiction, requesting
the juvenile court to transfer M.B.’s case to the general division of the common pleas court.
Following an amenability hearing, the trial court determined that there was sufficient time to
rehabilitate M.B. within the juvenile system. Accordingly, the trial court denied the state’s
motion to relinquish jurisdiction.
{¶5} On April 23, 2016, pursuant to a plea agreement, M.B. voluntarily admitted and
pleaded delinquent to single counts of aggravated robbery and kidnapping, with three-year
firearm specifications. At the state’s request, the court designated M.B. a serious youth
offender (“SYO”). Following the disposition hearing, the juvenile court committed M.B. to
ODYS for a minimum period of three years and a maximum period not to exceed his 21st
birthday. The juvenile court also imposed a six-year, adult prison term on the kidnapping
offense, pursuant to the SYO finding. The juvenile court stayed the adult portion of the
sentence pending M.B.’s successful completion of the juvenile disposition.
{¶6} On August 7, 2017, the state filed a motion to invoke the adult portion of M.B.’s
SYO dispositional sentence. The motion alleged that while M.B. was in ODYS, he was
involved in several incidents of misconduct that could amount to a felony or first-degree
misdemeanor offense; that M.B. would be charged separately as a result of this conduct; and that
the combination of the misconduct provides the requisite cause to invoke the adult portion of
M.B.’s SYO dispositional sentence.
{¶7} On September 21, 2017, the juvenile court held an invocation hearing. At the
hearing, the state introduced a number of incident reports and video exhibits depicting M.B.’s
misbehavior at ODYS. In addition, the state elicited the following relevant testimony from
ODYS staff members.
{¶8} ODYS Chief of Facility Operations, Amy Ast, testified that she handles security
concerns at the ODYS facilities. Regarding the incidents supporting the state’s motion to
invoke M.B.’s adult sentence, Ast provided ample testimony regarding M.B.’s violent and
disruptive behavior during his commitment at the Cuyahoga Hills Correctional Facility. In
particular, Ast described incidents that occurred on February 10, 2017 and September 19, 2017
where M.B. assaulted ODYS staff members. She further described incidents on April 10, 2017,
August 6, 2017, September 1, 2017, September 11, 2017, and September 14, 2017, where M.B.
participated in, or initiated, fights with other youth offenders. Ast also testified that on April
24, 2017, M.B. started a fire in a facility recreation room. As a result of this incident, M.B. was
charged with aggravated arson.
{¶9} In addition to M.B.’s “assaultive behavior,” Ast testified that M.B. “accumulated
quite a few [Youth Behavior Incident Reports (“YBIRs”)]” involving “offenses that were not as
serious, but very disruptive to the facility.” The YBIRs submitted to the court reflect
approximately 19 instances of misbehavior by M.B., including rule violations for refusing to
follow staff instruction, refusing to attend required programing, threatening conduct, complicity,
security threat group activity, misusing or abusing property, out of area, offensive conduct,
sexual harassment toward staff, sexual misconduct, and creating a health and safety hazard.
{¶10} Dr. Jennifer Alpert testified that she works for ODYS as a psychology supervisor.
She explained that she reviews youth’s records coming into the facility, assigns mental health
cases to providers, and oversees mental health providers in the ODYS facility. While Dr.
Alpert did not meet with M.B. in a clinical setting, she testified that M.B. had multiple services
made available to him at ODYS, including substance abuse orientation, cognitive behavioral
therapy, anger management, gang curriculum, music therapy, and a substance abuse program.
However, Dr. Alpert testified that M.B. did not consistently participate in school or in the
programs made available to him by ODYS. Accordingly, Dr. Alpert agreed that “[M.B.] has not
taken steps to fully engage into gaining benefits from the programs.”
{¶11} When asked whether M.B. was likely to be rehabilitated, Dr. Alpert testified that
she was “guarded at best with [her] opinion as far as what more [ODYS] ha[s] to offer [M.B.] to
help him.” She explained that all available ODYS resources and programing have been
provided to M.B. and that the programing available at Cuyahoga Hills is the same programing
available at all ODYS facilities.
{¶12} During the course of her testimony, defense counsel asked Dr. Alpert if she spoke
with counsel for ODYS prior to the invocation hearing. When Dr. Alpert confirmed that she
had, defense counsel asked her what the “conversation with [ODYS counsel] was about?” At
that time, ODYS counsel raised an objection, indicating to the court that there were privilege
concerns regarding his communications with Dr. Alpert. After careful consideration, the court
sustained the objection. However, the trial court permitted defense counsel to question Dr.
Alpert regarding whether she communicated with ODYS counsel and other ODYS employees
prior to the hearing. Without disclosing the substance of the communications, Dr. Alpert
confirmed that she had participated in email and phone conversations with ODYS counsel and
other ODYS employees prior to the hearing.
{¶13} Following defense counsel’s re-cross-examination, the court addressed Dr. Alpert
in the effort to obtain clarity regarding the nature of Dr. Alpert’s conversations with ODYS
counsel before the invocation hearing:
THE COURT: I think the answer that I would like to know is when you walked
into the courtroom being that you’re the psychologist, did you have any
preconceived idea that [M.B.] should be transferred to the General Division and
out of ODYS?
DR. ALPERT: No.
{¶14} Bennie Kelly, the superintendent of the Cuyahoga Hills facility, testified that he
became aware of M.B. following his involvement in assaults with other youth offenders at the
facility. In May 2017, Kelly met with all the serious youth offenders, including M.B., and
informed them that he would not tolerate further violence at Cuyahoga Hills. Kelly expressed
that he was very concerned with “the level of violence that [has] taken place at the facility,” and
that M.B. “has played a major part in that role.”
{¶15} Torri Williams testified that she is a ODYS parole officer and has supervised M.B.
at ODYS since he was placed at the Cuyahoga Hills facility. Williams testified that M.B. has
not consistently complied with his juvenile court orders. However, she stated that, to the best of
her recollection, M.B. has participated in schooling “at times” and completed the alcohol and
drug portion of his court-ordered programing.
{¶16} Before issuing its judgment, the court provided Amanda Hawkins, M.B.’s guardian
ad litem, with the opportunity to be heard. Hawkins opined that sending M.B. to adult prison
would be detrimental to his future and would seal his fate in the criminal system. She stated
that she believed M.B. “does have hope for a future,” and that sending him to a different juvenile
facility may help M.B. distance himself from his gang affiliation.
{¶17} On September 22, 2017, the juvenile court issued a journal entry granting the
state’s motion to invoke the adult portion of M.B.’s SYO dispositional sentence and ordered that
M.B. be transferred to an adult prison to serve his six-year sentence. In a journal entry dated
September 25, 2017, the trial court found, in relevant part:
The Court finds by clear and convincing evidence that the youth is at least
fourteen years of age, is serving the juvenile portion of a Serious Youthful
Offender dispositional sentence, and is in the institutional custody of or escapee
from the Department of Youth Services; and that there is reasonable cause to
believe that after the youth reached fourteen years of age: the youth committed an
act that is a violation of the rules of the institution and that could be charged as a
felony or as a first-degree misdemeanor offense of violence if committed by an
adult and engaged in conduct that created a substantial risk to the safety or
security of the institution, the community, or the victim.
The Court further finds by clear and convincing evidence that the youth has been
admitted to a Department of Youth Services facility or criminal charges are
pending against the youth, and the youth’s conduct demonstrates that the youth is
unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.
{¶18} M.B. now appeals from the juvenile court’s judgment.
II. Law and Analysis
A. Scope of Dr. Alpert’s Testimomy
{¶19} In his first assignment of error, M.B. argues the juvenile court erred when it
entertained an objection from ODYS during the cross-examination of Dr. Alpert. In his second
assignment of error, M.B. argues the juvenile court erred when it determined that Dr. Alpert’s
communications with ODYS counsel were privileged under R.C. 2317.02(A). We address
these assigned errors together for clarity.
{¶20} Relevant to the arguments posed in M.B.’s first and second assignments of error,
the following exchange occurred during the invocation hearing:
DEFENSE COUNSEL: Okay. Yesterday, and did you talk to [ODYS counsel]
before you came [here] to testify?
DR. ALPERT: I did.
DEFENSE COUNSEL: Okay. And what was your conversation with [ODYS
counsel] about?
PROSECUTOR: Objection.
THE COURT: It’s way outside of the scope of the Court’s questions, I would
argue.
THE COURT: I think I’m going to allow a little more leeway. Overruled.
ODYS COUNSEL: Your Honor, there are privilege concerns regarding
communication.
TRIAL COURT: That I will sustain.
DEFENSE COUNSEL: What privileged communication?
TRIAL COURT: Well, it’s interesting.
DEFENSE COUNSEL: He’s not her lawyer.
TRIAL COURT: Well, she is an ODYS employee. Is she your client?
ODYS COUNSEL: She’s the employee of the Agency, acting in the Agency’s
capacity. Yes, your Honor.
DEFENSE COUNSEL: [Dr. Alpert], when you spoke to [ODYS counsel]
yesturday, was it your understanding you had an attorney-client privilege with him
or were you talking to his as some type of supervisor [at ODYS]?
DR. ALPERT: I didn’t give that a thought.
DEFENSE COUNSEL: Okay. Well, the nature of the conversation was about
M.B. It wasn’t about anything that you did or didn’t do that you thought you
might have some type of problem that you needed to talk to a lawyer from
[ODYS], is that correct?
PROSECUTOR: Objection. May we approach, your Honor?
TRIAL COURT: Yes.
{¶21} Following an off-the-record conversation, the trial court determined that Dr. Alpert
was not required to answer questions regarding the substance of her conversations with ODYS
counsel prior to the hearing. However, the court permitted defense counsel to question Dr.
Alpert regarding how she received the subpoena for the hearing and whether she communicated
with ODYS counsel and other ODYS employees prior to the hearing.
{¶22} On appeal, M.B. argues that counsel for ODYS was not a proper party to the
invocation proceedings and, therefore, the juvenile court did not have the authority to entertain an
objection raised by a nonparty pursuant to Juv.R. 2(Y). Alternatively, M.B. contends that
“aside from standing,” the juvenile court erred when it sustained ODYS’s improper objection
because a testifying witness’ prior conversation with her employer’s attorney is not a privileged
communication under R.C. 2317.02(A).
{¶23} Initially, we note that the Ohio Rules of Evidence are not applicable to invocation
proceedings. In In re A.A.W., 8th Dist. Cuyahoga No. 101580, 2015-Ohio-1297, this court
explained as follows:
Evid.R. 101(A) provides, in part, that the evidence rules do not apply to
miscellaneous criminal proceedings such as “[p]roceedings for extradition or
rendition of fugitives; sentencing; granting or revoking probation; proceedings
with respect to community control sanctions; issuance of warrants for arrest;
criminal summonses and search warrants; and proceedings with respect to release
on bail or otherwise.”
In In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 16, 20, the
Ohio Supreme Court stated that an invocation proceeding is not the same as a
delinquency proceeding. Rather, an invocation proceeding is analogous to a
“proceeding incident to a criminal court’s imposition of a suspended sentence.”
Id. at ¶ 16. At an invocation hearing, the juvenile court may not increase the
juvenile offender’s sentence; it merely decides whether to invoke the adult portion
of the juvenile’s sentence that was suspended. Id. at ¶ 8; State v. D.H., 120 Ohio
St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 30. Although Evid.R. 101(A) does
not specifically include the term “invocation hearings” on its list of exemptions,
because they are akin to sentencing proceedings, probation violation hearings, and
“proceedings with respect to release,” Evid.R. 101(A) exempts them from strict
application of the Ohio Evidence Rules.
Additionally, R.C. 2151.35(B)(2), which governs juvenile court hearing
procedures, specifically states that “[t]he court may admit any evidence that is
material and relevant, including, but not limited to, hearsay, opinion, and
documentary evidence.” See also Juv.R. 34(B)(2); In re T.J., 8th Dist. Cuyahoga
Nos. 99877 and 99878, 2013-Ohio-5434. Thus, the only restriction on the
admission of evidence during an invocation proceeding is that the evidence must
be “material and relevant.” Id.
Id. at ¶ 11-13.
{¶24} In this case, evidence relating to whether Dr. Alpert’s testimony and opinions were
biased as a result of her conversations with ODYS counsel prior to the invocation hearing was
certainly “material and relevant.” However, after careful consideration of Dr. Alpert’s
testimony in conjunction with the other state witnesses, we find the challenged evidentiary ruling
did not impact or influence the trial court’s judgment. From this record, it is evident that
defense counsel was attempting to question Dr. Alpert about her conversations with ODYS
counsel in an effort to explore her “potential bias and ulterior motives.”
{¶25} While the trial court sustained ODYS counsel’s objection on grounds of privilege,
the trial court clearly understood the nature of defense counsel’s line of questioning. Thus, the
trial court addressed this issue on its own during the court’s questioning of Dr. Alpert:
THE COURT: I think the answer that I would like to know is when you walked
into the courtroom being that you’re the psychologist, did you have a
preconceived idea that [M.B.] should be transferred to the General Division and
out of ODYS.
DR. ALPERT: No.
{¶26} Based on the trial court’s direct questioning, issues involving Dr. Alpert’s potential
bias or ulterior motives were addressed and ultimately refuted by Dr. Alpert during the
invocation hearing. The record reflects that while she spoke with ODYS counsel and other
ODYS employees prior to her testimony at the invocation hearing, those conversations did not
cause her to have any preconceived notions before she actually reviewed M.B.’s file and the
numerous incident reports filed against him.
{¶27} Viewing the testimony presented at the invocation hearing in its entirety, including
the court’s direct questioning of Dr. Alpert, we cannot say the trial court’s evidentiary ruling
following ODYS’s objection impacted its decision to invoke the adult portion of M.B.’s
dispositional sentence. Thus, we find the trial court’s decision to entertain the objection from
counsel for ODYS and its preclusion of certain testimony did not affect M.B.’s substantial rights
and was, at worst, harmless error. Accordingly, M.B.’s first and second assignments of error
are overruled.
B. Confrontation Clause
{¶28} In his third assignment of error, M.B. argues the trial court violated his
constitutional rights to confrontation and cross-examination where he was not given the
opportunity to confront certain ODYS employees or Dr. Alpert’s potential bias.
{¶29} The Confrontation Clause of the Sixth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him.” The United States Supreme Court has interpreted the clause to bar
admission of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify and the defendant has had a prior opportunity for cross-examination.
Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford
did not define the word “testimonial” but stated that the core class of statements implicated by
the Confrontation Clause includes statements “‘made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a later
trial.’” Id. at 52, quoting the amicus brief of the National Association of Criminal Defense
Lawyers.
{¶30} On appeal, M.B. argues, for the first time, that his constitutional rights were
violated because he was unable to confront the ODYS employees who created the incident
reports that were relied on by the state’s witnesses during the invocation hearing. M.B.
contends that “defense counsel was never afforded the opportunity to probe or explore [the
ODYS employee’s] personal knowledge, perceptions, operating procedures, or overall
credibility.” M.B. further reiterates many of the same arguments raised in his previous
assignments of error. He contends that the trial court’s evidentiary ruling regarding privileged
conversations deprived him of the opportunity to conduct a meaningful cross-examination of Dr.
Alpert.
{¶31} After careful review, we find M.B.’s reliance on the constitutional protections
afforded under the Sixth Amendment to be without merit. Significantly, M.B. did not raise
confrontation objections below and has therefore waived this issue on appeal.2 Moreover, an
“invocation proceeding is not a criminal proceeding.” In re J.V., 134 Ohio St.3d 1,
2012-Ohio-4961, 979 N.E.2d 1203, at ¶ 20. Rather, an invocation proceeding is analogous to a
“proceeding incident to a criminal court’s imposition of a suspended sentence.” Id. at ¶ 16.
This distinction is significant as this court has held that “the Confrontation Clause does not apply
to sentencing proceedings.” State v. Diaz, 8th Dist. Cuyahoga No. 102582, 2015-Ohio-4382, ¶
3, citing Williams v. New York, 337 U.S. 241, 246-250, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949);
State v. Williams, 8th Dist. Cuyahoga No. 98934, 2013-Ohio-2201, ¶ 18.
{¶32} As previously stated, the only restriction on the admission of evidence during an
invocation proceeding is that the evidence must be “material and relevant.” In re A.A.W. at ¶
13. In this case, the incident reports bore a sufficient indicia of reliability and were relevant to
the juvenile court’s determination of whether M.B. was unlikely to be rehabilitated during his
remaining time in the juvenile facility. Thus, even if this court were to assume the detention
center incident reports were “testimonial” in nature,3 we find the juvenile court’s consideration
of the relevant reports and YBIR records was proper.
{¶33} Furthermore, while M.B. failed to raise confrontation objections below, the record
reflects that he was afforded the minimum requirements of due process under the Fourteenth
2
“It is a well-established principle that Confrontation Clause rights, like other constitutional rights, can be waived.”
State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 14, citing Brookhart v. Janis, 384 U.S.
1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Hawkins v. Hannigan, 185 F.3d 1146, 1154 (10th Cir.1999) (“There is
no doubt that a defendant may waive” the right to confrontation). See also Magruder v. Commonwealth, 275 Va.
283, 295, 657 S.E.2d 113 (2008) (Crawford did not speak to the issue of waiver of right to confrontation);
Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo.2007) (Crawford “did not alter the fact that the right to
confrontation can be waived”).
3
See State v. Raines, 362 N.C. 1, 17, 653 S.E.2d 126 (2007) (finding the admission of detention center incident
reports did not violate defendant’s Confrontation Clause rights since the statements therein were not testimonial —
but “are more like business records, which by their nature are not testimonial.”).
Amendment. Here, M.B. was given ample opportunity to confront the state’s witnesses and
dispute whether the incident reports sufficiently demonstrated that M.B. was unlikely to be
rehabilitated. Defense counsel thoroughly cross-examine each of the state’s witnesses regarding
the substance of numerous incident reports and the video surveillance footage that depicted many
of the altercations described in said reports. Similarly, Dr. Alpert was zealously cross-examined
regarding her familiarity with M.B.’s case and his behavior at Cuyahoga Hills. And, as
previously discussed, the questions posed to Dr. Alpert by the court ensured that her testimony
was the product of her unbiased review of M.B.’s record and not guided by any preconceived
notions. M.B.’s inability to further dissect the nature of Dr. Alpert’s off-the-record
conversations with ODYS staff did not impact the court’s ultimate conclusion.
{¶34} Under these circumstances, we find M.B. has failed to demonstrate a violation of
his constitutional rights or firmly established evidentiary principles.
{¶35} M.B.’s third assignment of error is overruled.
C. Serious Youthful Offender Sentence
{¶36} In his fourth assignment of error, M.B. argues the juvenile court erred when it
determined, in the absence of clear and convincing evidence, that M.B. was unlikely to be
rehabilitated during the remainder of the court’s jurisdiction.
{¶37} In State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, the Ohio
Supreme Court distinguished the treatment of serious youthful offenders in Ohio juvenile courts
from that of adults in the criminal justice system. The court recognized that SYO cases do not
involve a bindover to an adult court and that the juvenile remains under the continuing
jurisdiction of the juvenile court judge. Id. at ¶ 18. Any adult sentence imposed by the
juvenile court at sentencing acts as a “potential sentence.” Id. at ¶ 30. The juvenile must
engage in separate conduct detrimental to his own rehabilitation in the juvenile system before he
may be committed to an adult facility. Id. at ¶ 38.
{¶38} Theoretically, the threat of an adult sentence encourages the juvenile to cooperate
in his own rehabilitation. Id. at ¶ 18. Indeed, the overriding purposes for dispositions under
R.C. Chapter 2152 are “to provide for the care, protection, and mental and physical development
of children subject to this chapter, protect the public interest and safety, and hold the offender
accountable for the offender’s actions, restore the victim, and rehabilitate the offender.” R.C.
2152.01(A).
{¶39} Under R.C. 2152.14(E), the juvenile court may invoke the adult portion of an SYO
dispositional sentence if the juvenile court finds, by clear and convincing evidence, that:
(a) The person is serving the juvenile portion of a serious youthful offender
dispositional sentence.
(b) The person is at least fourteen years of age and has been admitted to a
department of youth services facility, or criminal charges are pending against the
person.
(c) The person engaged in the conduct or acts charged under division (A), (B), or
(C) of this section, and the person’s conduct demonstrates that the person is
unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.
R.C. 2152.14(E)(1).
The conduct that can result in the enforcement of an adult sentence includes
committing, while in custody or on parole, an act that is a violation of the rules of
the institution or the conditions of supervision and that could be charged as any
felony or as a first-degree misdemeanor offense of violence if committed by an
adult[.]
D.H. at ¶ 36, citing R.C. 2152.14(A)(2)(a), (B)(1). In the alternative, “engaging in conduct that
creates a substantial risk to the safety or security of the institution, the community, or the victim”
constitutes conduct that can result in the enforcement of an adult sentence. Id., citing R.C.
2152.14(A)(2)(b) and (B)(2).
{¶40} “The clear-and-convincing-evidence standard allowed by R.C. 2152.14(E)(1) is
less rigorous [than the beyond-a-reasonable doubt standard required in criminal trials], though
stronger than a mere preponderance-of-the-evidence standard.” In re J.V., 134 Ohio St.3d 1,
2012-Ohio-4961, 979 N.E.2d 1203, ¶ 20. Clear and convincing evidence is that “which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus.
{¶41} “Ohio courts of appeal that have reviewed a trial court’s clear-and-convincing
conclusions in other contexts will not disturb that conclusion when it is supported by evidence
that is legally sufficient to satisfy the clear and convincing standard of proof.” In re M.M., 3d
Dist. Allen No. 1-17-56, 2018-Ohio-1110, ¶ 16, citing Cross at 477; State v. James, 3d Dist.
Van Wert No. 15-00-02, 2000 Ohio App. LEXIS 2249, 2 (May 25, 2000); In re Gambrel, 3d
Dist. Logan Nos. 8-02-32 and 8-02-33, 2003-Ohio-1025, ¶ 6.
{¶42} In this case, it is undisputed that M.B. was over 14 years of age and was serving the
juvenile portion of his SYO dispositional sentence at the time of the invocation hearing. It was
also undisputed that M.B. engaged in conduct that could be charged as a felony or misdemeanor
of violence, if committed by an adult. However, M.B. argues the state failed to prove, by clear
and convincing evidence, that he was “unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction.” We disagree.
{¶43} At the invocation hearing, Ast provided a detailed and thorough description of
M.B.’s aggressive and often violent behavior during his time at ODYS. Specifically, she
testified to no less than eight instances of violence perpetrated by M.B. on staff members and
other youths, and one incident involving M.B.’s role in starting a fire in the facility’s recreation
room. Ast further testified to other acts of misconduct that resulted in M.B. being cited for
facility rule violations. The YBIR records submitted to the court reflect approximately 19
separate citations, including violation of the facility’s rules against refusing to follow staff
instruction, refusing to attend required programing, threatening conduct, complicity, security
threat group activity, misusing or abusing property, out of area, offensive conduct, sexual
harassment toward staff, sexual misconduct, and creating a health and safety hazard.
{¶44} Likewise, superintendent Kelly provided ample testimony concerning the impact
M.B.’s violent and disruptive behavior was having on the safety and rehabilitation of other youth
in the facility. He explained:
When I look at say [M.B.]’s conduct over the past 90 days, my biggest fear with
the level of violence that’s taken place at the facility, someone is going to be
seriously hurt. Every night I get calls about different incidents that happen, and
I’m going to tell you now, never in my wildest dreams did I think about death
inside of the facility like I think about it at [Cuyahoga Hills]. And it’s because of
the level of violence that these youths are committing. And [M.B.] plays a major
part in that role.
***
It’s about keeping folks safe. It’s about keeping my staff safe. It’s about keeping
the other youths safe. When you look at say the incident reports that you were
provided with [M.B.], just about every area of the facility I’ve got kids going to
school, I’ve got [M.B.] running into classrooms. I’ve got kids going down to eat.
I got [M.B.] assaulting kids down in the chow hall. I’ve got kids on the
telephone. I’ve got [M.B.] assaulting kids. We have a lot of things that we
want to do in the facility, but before we do anything, we’ve got to keep it safe.
We’ve got to make it safe for employees, and I’m going to tell you now, when you
read some of the AMS’s that’s written on [M.B.], it’s about intimidation. It’s
about threats. And we cannot make any progress with moving the facility
forward to provide those [re]habilitation services that people expect until we can
create a safe and secur[e] facility.
{¶45} In addition to M.B.’s behavioral issues, Dr. Alpert testified that M.B. had multiple
services made available to him at ODYS, but was not consistently participating in school or the
available programs. Because M.B. had not taken steps to fully engage in the available programs
and facility resources, Dr. Alpert expressed her concerns with what more ODYS had to offer
M.B. Similarly, M.B.’s parole officer testified that while M.B. did participate in schooling “at
times” and completed the alcohol and drug portion of his court-ordered programing, he failed to
consistently comply with his juvenile court orders while at ODYS.
{¶46} This court recognizes the GAL’s concerns with the impact adult prison may have
on M.B.’s future in this community upon his release. However, given the serious nature of the
testimony presented at the invocation hearing, we find it was reasonable for the trial court to
conclude that M.B. was not fully engaged in his rehabilitation at ODYS and posed an ongoing
risk to the safety and security of the institution. M.B. simply had not demonstrated any
improvement in his attitude or behavior since arriving at ODYS. For these reasons, we find the
trial court’s finding that M.B. is unlikely to be rehabilitated during the remaining period of the
juvenile court’s jurisdiction is supported by clear and convincing evidence.
{¶47} Alternatively, M.B. argues “the juvenile court’s conclusion that M.B. could not be
rehabilitated, despite an opportunity for four more years of treatment, was against the manifest
weight of the evidence.” However, whether the evidence is to be believed is a matter squarely
within the province of the trial court. State v. Brown, 10th Dist. Franklin No. 03AP-331,
2004-Ohio-1219, ¶ 13. Accordingly, we defer to the trial court’s assessment of the witnesses
credibility and its application of the clear-and-convincing standard of proof.
{¶48} Finally, M.B. argues the trial court erred when it issued a judgment entry that failed
to reflect what actually occurred at the invocation hearing. M.B. contends that the trial court
improperly found in its journal entry that M.B. “is unlikely to be rehabilitated” where the
transcript of the proceeding is devoid of such a finding from the court.
{¶49} After careful review of the transcript, M.B. correctly states that the juvenile court
did not expressly find that M.B. was “unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction” at the conclusion of the invocation hearing. However, the juvenile court
did make the following relevant statement on the record concerning the likelihood of M.B.’s
rehabilitation at the ODYS facility:
I have two competing interests. I have the interest of getting you the help you
need in rehabilitation. * * * I also have the interest of keeping the facility safe
and doing what they’re supposed to do, and those things are clashing right now.
(Emphasis added.)
{¶50} In addition, the R.C. 2152.14(E)(1)(c) finding was unequivocally made in the trial
court’s September 25, 2017 journal entry invoking the adult portion of M.B.’s dispositional
sentence. The entry states, in relevant part:
The Court further finds by clear and convincing evidence that the youth has been
admitted to a Department of Youth Services facility or criminal charges are
pending against the youth, and the youth’s conduct demonstrates that the youth is
unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.
{¶51} Because “it is well established that a court speaks through its journal entries,”
State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 12, we find the trial
court made all necessary findings as required under R.C. 2152.14(E)(1).
{¶52} M.B.’s fourth assignment of error is overruled.
D. Ineffective Assistance of Counsel
{¶53} In his fifth assignment of error, M.B. argues he was deprived of his Sixth
Amendment right to the effective assistance of counsel at the invocation hearing. He contends
defense counsel was ineffective because he failed to request an updated evaluation “pertaining to
M.B.’s mental health and amenability.”
{¶54} The Sixth Amendment to the United States Constitution guarantees an accused
juvenile the same rights to effective assistance of counsel as an adult criminal defendant. In re
Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To prevail on a claim of
ineffective assistance of counsel, a defendant must show that counsel’s performance fell below
an objective standard of reasonableness and that prejudice arose from counsel’s performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. A
defendant must show that counsel acted unreasonably and that but for counsel’s errors, there
exists a reasonable probability that the result of the proceeding would have been different.
Strickland at 696; Bradley at paragraph three of the syllabus. In making this determination, the
reviewing court must presume that counsel’s conduct was competent. Id.
{¶55} In support of his ineffective assistance of counsel claim, M.B. contends that an
updated mental health and amenability evaluation would have provided the juvenile court with
“some basis upon which to assess M.B.’s rehabilitative prospects.” We are not persuaded by
M.B.’s position.
{¶56} In this case, there was no evidence presented at the invocation hearing to suggest
that M.B.’s violent and disruptive behavior was related to, or the product of, mental health or
competency issues. Furthermore, we find nothing in this record to support M.B.’s contention
that an updated amenability evaluation would have supported defense counsel’s attempt to
demonstrate the likelihood of M.B.’s rehabilitation. The purpose of the invocation hearing was
to determine whether M.B. was unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction. As set forth during the invocation hearing, M.B. has continuously
engaged in disruptive and violent behavior during his time in the juvenile facility. He has
continued his violent outbursts, caused a fire inside the facility, and accumulated numerous
YBIRs for various rule violations. Because an amenability or psychological evaluation would
have considered much of the information provided at the invocation hearing, it is unlikely that
the conclusions rendered in such an evaluation would have benefitted M.B. Certainly, this court
cannot conclude that the outcome of the invocation proceedings would have been different had
M.B. undergone further evaluations.
{¶57} Based on the foregoing, we find M.B. has not demonstrated that his constitutional
right to effective assistance of counsel was violated. M.B.’s fifth assignment of error is
overruled.
{¶58} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas Court,
Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
CONCURRING OPINION)
SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶59} In light of the fact we granted reconsideration, I would more directly address the
substantive issue raised by M.B. In the motion for reconsideration, M.B. claims (1) that this
court failed to consider whether ODYS lacks standing to object to its employee’s testimony, and
(2) that this court applied a harmless-error analysis to a violation of the Confrontation Clause.
{¶60} The first argument ignores the fact that the prosecutor objected to the witness’s
testimony at issue — ODYS’s counsel merely provided the background information enabling the
court to resolve the objection. There is no standing issue because the prosecutor initiated the
objection. Further, even if counsel for ODYS had objected, M.B. has not presented authority
for the proposition that a witness’s attorney is barred from participating in an invocation
proceeding in a limited capacity to protect the rights of the testifying witness. M.B.’s second
argument — that the majority applied an outcome-determinative analysis to a Confrontation
Clause violation — is not based on the majority’s holding that the Confrontation Clause does not
apply in invocation or sentencing proceedings. In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961,
979 N.E.2d 1203, ¶ 16. M.B. does not contest this legal conclusion.
{¶61} With respect to the merits of the appeal, I concur in judgment only.
.