In re S.D.

[Cite as In re S.D., 2021-Ohio-2747.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

IN RE: S.D. : APPEAL NOS. C-200304
C-200305
: C-200306
C-200307
: TRIAL NOS. 19-5152X
19-5153X
19-5154X
: 19-5155X

:

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: August 11, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, Jessica Moss, Assistant
Public Defender, and Robert Jones, Assistant Public Defender, for Defendant-
Appellant.
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ZAYAS, Presiding Judge.

{¶1} S.D. appeals the judgments of the Hamilton County Juvenile Court

overruling his motion to dismiss the rape charge and imposing serious youthful

offender dispositional sentences for rape and three counts of importuning. For the

reasons discussed below, we affirm the judgments of the trial court.

Factual Background

{¶2} On October 15, 2019, complaints were filed against S.D. alleging rape,

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

importuning, felonies of the third degree if committed by an adult. On October 25,

2019, the state filed motions for relinquishments on each case. After the parties

stipulated to probable cause, the juvenile court conducted an amenability hearing

and retained jurisdiction, finding S.D. was amenable to treatment within the juvenile

system.

{¶3} On March 12, 2020, S.D. filed a motion to dismiss the charge, seeking

to reduce or dismiss the rape charge after S.D. was indicted for rape and three counts

of importuning, and each count alleged S.D. was subject to a serious youthful

offender (“SYO”) designation. The motion focused on the mitigating factors with

respect to S.D. The juvenile court overruled the motion.

{¶4} On June 17, 2020, S.D. filed a motion to dismiss under Juv.R. 29. S.D.

asked the court to dismiss the complaint, or to dismiss or reduce the rape charge,

and to consider postponing the disposition under Juv.R. 29(F)(2). At the hearing on

the motion, S.D. argued that it would be in his best interest to dismiss or reduce the

rape charge because he could be successfully rehabilitated in the juvenile system

after a dismissal or reduction due to the other three felonies. He further argued that

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the reduction or dismissal would allow for an eventual expungement and protect him

from a permanent label. The state argued that dismissal or reduction was not in the

best interest of the community because there was insufficient time to ensure

successful completion of therapy, the public interest and safety would not be

protected, and S.D. would not be held accountable.

{¶5} The court took the matter under advisement and stated: “I’m acutely

aware of the status of the young man, the history of the young man, what happened

here. I’m acutely aware of community safety as well as obviously what’s happened to

him and these allegations.” The juvenile court overruled the motion on July 16,

2020, at the initial disposition hearing.

{¶6} S.D. also filed a motion in opposition to an SYO designation, arguing

that the irrebuttable presumption of a mandatory term violates due process as

applied to juveniles because it treats all juveniles as culpable as adults, and that the

mandatory sentence constitutes cruel and unusual punishment because it prevents

the court from considering youth as a factor and is the equivalent of life without

parole. At the final disposition hearing, S.D. also argued that applying the SYO

sentence to him was unconstitutional. The juvenile court committed S.D. to the

Department of Youth Services for an aggregate term of a minimum of 36 months,

with the maximum not to exceed his 21st birthday. The court also imposed a stayed

adult sentence of 15 years to life incarceration in the Department of Corrections as

part of the SYO disposition.

{¶7} S.D. now appeals, challenging the juvenile court’s decision overruling

his motion to dismiss the rape charge and the imposition and constitutionality of the

serious youthful offender designations.

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Law and Analysis

{¶8} First, S.D. argues that the juvenile court abused its discretion when it

denied his motion to dismiss the rape charge because the record established that the

court was able to achieve the same outcome as to treatment, consequences,

disposition, and registration requirements without the adjudication for rape.

{¶9} A juvenile court has broad discretion to dismiss a case after

adjudication if dismissal is in the “best interest of the child and the community.”

Juv.R. 29(F)(2)(d). Whether a delinquency proceeding should be dismissed is within

the sound discretion of the trial judge. In re N.K., 8th Dist. Cuyahoga No. 82332,

2003-Ohio-7059, ¶ 23. We review the court’s determination for an abuse of

discretion. See In re Smith, 80 Ohio App.3d 502, 504, 609 N.E.2d 1281 (1st

Dist.1992). An abuse of discretion “connotes more than an error of law or judgment;

it implies that the court's attitude is unreasonable, arbitrary or unconscionable.” See

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶10} Essentially, S.D. argues that the juvenile court should have dismissed

or reduced the rape charge because S.D. suffered horrific abuse as a child and never

received appropriate treatment and the record shows the court could achieve the

same outcome if the charge was reduced or dismissed. Although S.D.’s abuse and

lack of treatment was well documented, the record does not support S.D.’s assertion

that the court could achieve the same outcome under these circumstances.

{¶11} The record contains evidence that S.D., who was 18 at the time of

disposition, was 17 years old when the offenses occurred, the offenses represented a

pattern of conduct involving four young children ranging in age from five to 11 years

old, the juvenile resources may not be adequate to successfully rehabilitate S.D. or

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hold him accountable, and the victims had suffered tremendously and had not been

restored. Based on this record, we cannot conclude that the trial court abused its

discretion in denying the motion to dismiss, and overrule the first assignment of

error.

{¶12} In his second assignment of error, S.D. contends that the juvenile

court abused its discretion when it imposed a serious youthful offender designation

on him. S.D. correctly states that an appellate court reviews the imposition of an

SYO sentence under R.C. 2152.13(D)(2)(a)(i) for an abuse of discretion. See In re

Wilson, 11th Dist. Lake No. 2003-L-160, 2005-Ohio-3262, ¶ 8.

{¶13} Under R.C. 2152.11(D)(2), the juvenile court had the discretion to

impose an adult sentence on S.D. In order to impose an adult sentence, R.C.

2152.13(D)(2)(a)(i) provides:

If the juvenile court on the record makes a finding that, given the

nature and circumstances of the violation and the history of the child,

the length of time, level of security, and types of programming and

resources available in the juvenile system alone are not adequate to

provide the juvenile court with a reasonable expectation that the

purposes set forth in section 2152.01 of the Revised Code will be met,

the juvenile court may impose upon the child a sentence available for

the violation, as if the child were an adult, under Chapter 2929. of the

Revised Code, except that the juvenile court shall not impose on the

child a sentence of death or life imprisonment without parole.

{¶14} The purposes of R.C. 2152.01 are “to provide for the care, protection,

and mental and physical development of children subject to this chapter, protect the

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public interest and safety, hold the offender accountable for the offender’s actions,

restore the victim, and rehabilitate the offender.” R.C. 2152.01(A).

{¶15} S.D. acknowledges that the juvenile court made the requisite findings,

and instead argues that the court did not provide its reasons for the findings and that

the record did not support the court’s findings. S.D. claims that the offenses were

not a pattern because they occurred over a short time period and further argues that

the record supported a finding that the juvenile system was adequate to meet the

purposes of R.C. 2152.01 due to S.D.’s prior abuse, lack of treatment, willingness to

participate in treatment, and the testimony of Chelsey Blazer, Linda Lakamp, Nolita

Niederhelm, and Sara Stevens that the juvenile system was sufficient to rehabilitate

S.D.

{¶16} However, those four witnesses testified in support of Abraxas over a

DYS placement. Abraxas is a residential facility that provides sex offender treatment

to juveniles. Blazer, a high school intervention specialist, testified that the pending

prison sentence would help motivate S.D. to successfully complete the juvenile

treatment at Abraxas. Lakamp, a speech therapist, expressed her hope that S.D.

would remain in the juvenile system. Family friend Niederhelm expressed her

support for the Abraxas program, and Stevens, who works at Abraxas, explained to

the court that the program was appropriate for S.D. None of these witnesses testified

that Abraxas was sufficient to rehabilitate S.D.

{¶17} None of the sex offender experts who testified about S.D.’s amenability

to treatment definitively concluded that S.D. would be successfully treated in the

juvenile system within the relevant time frame. Dr. Bassman, who had not met with

S.D., discussed the importance of treatment and aftercare and testified that more

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treatment is required when the offense is not a one-time offense. He did not

recommend a time frame for treatment. Dr. Taylor estimated that S.D. probably

required up to three years of treatment.

{¶18} Based on this record, the juvenile court did not abuse its discretion in

imposing a serious youthful offender disposition. We overrule the second

assignment of error.

{¶19} S.D. asserts, in his third assignment of error, that the mandatory

sentencing scheme in R.C. 2971.03 is unconstitutional because it does not permit the

trial court to make an individualized determination about S.D.’s sentence or consider

his youth as a mitigating factor in violation of his right to be free from cruel and

unusual punishment and his right to due process of the law. The crux of this

argument is that the adult portion of the SYO sentence does not allow the court to

consider youth as a mitigating factor, contrary to the Ohio Supreme Court’s recent

decision in State v. Patrick, Slip Opinion No. 2020-Ohio-6803, and therefore,

violates due process and the prohibition against cruel and unusual punishment.

{¶20} In Patrick, the Ohio Supreme Court determined that a trial court must

consider a juvenile’s youth as a mitigating factor when imposing a life sentence on a

juvenile who was convicted as an adult. Id. at ¶ 27. The Ohio Supreme Court

concluded that “age is undoubtedly a relevant factor that should be considered when

a trial court sentences an offender who was a juvenile when he or she committed the

offense, and therefore, youth is a relevant sentencing consideration under R.C.

2929.12(C) and (E).” Id. Accordingly, the court held that “a trial court must

separately consider the youth of a juvenile offender as a mitigating factor before

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imposing a life sentence under R.C. 2929.03, even if that sentence includes eligibility

for parole.” Id. at ¶ 2.

{¶21} However, S.D was not bound over, convicted, and sentenced as an

adult. Instead, S.D.’s disposition consisted of a juvenile disposition and a stayed

adult sentence. As previously discussed, before imposing an adult sentence, R.C.

2152.13(D)(2)(a) requires that the juvenile court: (1) make findings that, under the

circumstances, the juvenile system is not adequate to meet the purposes in R.C.

2152.01; (2) after making those findings, it may impose an adult sentence along with

traditional juvenile dispositions; and (3) after exercising its discretion, and imposing

a blended sentence, stay the adult portion pending successful completion of the

traditional juvenile disposition. See In re J.G., 3d Dist. Logan No. 8-20-59, 2021-

Ohio-1624, ¶ 22.

{¶22} In determining whether to impose the discretionary adult sentence on

S.D., the juvenile court considered “the nature and circumstances of the violation

and the history of the child” and the purposes of R.C. 2152.01, which include

providing “for the care, protection, and mental and physical development of children

subject to this chapter * * *.” R.C. 2152.13(D)(2)(a); R.C. 2152.01(A). S.D.

acknowledges that the juvenile court made the requisite findings before imposing the

SYO sentence. And a review of the record confirms that the court considered S.D.’s

youth prior to imposing the blended sentence.

{¶23} Unlike the adult sentencing statutes considered in Patrick, the juvenile

statutes require the court to consider the child’s youth before imposing an SYO

sentence. Juvenile judges must consider youth as a mitigating factor in determining

whether to impose an SYO classification and sentence. Thus, the reasoning applied

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in Patrick is inapplicable to this case, and the SYO sentence does not violate S.D.’s

constitutional rights because youth is considered in imposing an SYO sentence. See

In re N.S., 5th Dist. Coshocton No. 2016 CA 0005, 2017-Ohio-163, ¶ 19-22

(concluding that SYO sentencing does not violate a juvenile’s due process rights or

the prohibition against cruel and unusual punishments because in “determining

whether a SYO finding is appropriate, the juvenile court must consider the

circumstances of the violation and the child’s history with specific aspects of the

juvenile system, i.e., the length of time the child can be in the juvenile system, the

level of security available in the juvenile system, and the types of programming and

resources available in the juvenile system.”).

{¶24} S.D. further argues that his adult sentence violates due process

because the adult sentencing statute presumes that he is as morally culpable as an

adult. We first note that the juvenile sentencing scheme considers the differences

between juveniles and adults by prohibiting an adult sentence of life without parole

and requiring that the adult sentence be stayed pending the successful completion of

the juvenile disposition. See R.C. 2152.13(D)(2)(a). “Ohio’s serious youthful

offender statutes take into account juvenile-adult differences and make clear that

disposition within the juvenile system, if possible, is the preferred form of

punishment and rehabilitation.” In re J.B., 12th Dist. Butler No. CA2004-09-226,

2005-Ohio-7029, ¶ 139.

{¶25} Finally, citing to our recent decision in In re D.R., 2021-Ohio-1797

___ N.E.3d ___, (1st Dist.), S.D. contends that his procedural due process rights

were violated because R.C. 2971.03 removes a juvenile court’s discretion to impose

an individualized adult sentence. We disagree. In In re D.R., we held that R.C.

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2152.84 violated D.R.’s procedural due-process rights because the juvenile court had

no discretion to terminate D.R.’s classification as a Tier I sex offender, rendering the

hearing meaningless. Id. at ¶ 12-14.

{¶26} Here, the juvenile court made an individualized determination before

imposing an SYO sentence. Additionally, before the adult sentence may be invoked,

the juvenile must engage in additional serious wrongdoing, and after a hearing, the

court must determine the juvenile is unlikely to be rehabilitated during the

remaining period of the juvenile jurisdiction. See R.C. 2152.14(E)(1). These

safeguards satisfy fundamental fairness and due process. See State v. Aalim, 150

Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 27 (holding that a mandatory

bindover proceeding which includes a hearing, right to counsel, and judicial findings

satisfies a juvenile’s due-process rights).

{¶27} Consequently, we overrule S.D.’s third assignment of error.

Conclusion

{¶28} Finding S.D.’s three assignments of error to be without merit, we

affirm the judgment of the trial court.

Judgment affirmed.

CROUSE and BOCK, JJ., concur.

Please note:
The court has recorded its own entry on the date of the release of this opinion.

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