In re J.V.
JUDGMENT: AFFIRMED
Robert Tobik
Chief Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE, STATE OF OHIO
William D. Mason
Cuyahoga County Prosecutor
BY: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
Yvonne C. Billingsley
C.C.D.C.F.S.
3955 Euclid Avenue, Room 305E
Cleveland, OH 44115
SEAN C. GALLAGHER, A.J.:
{¶ 1} Appellant, J.V.,1 appeals the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Court Division, that invoked the adult
{¶ 2} J.V. initially had three cases pending before the juvenile division: DL 01105053, DL 04102103, and DL 05103008. Pursuant to a negotiated agreement, J.V. entered an admission to felonious assault and aggravated robbery charges, as well as attendant firearm and serious youthful offender specifications. J.V. was found to have been 17 years of age at the time of the offenses. After accepting J.V.‘s admissions, the juvenile court proceeded to disposition.
{¶ 3} J.V. filed a direct appeal from the disposition and argued that the juvenile disposition as it was reflected in the journal entries differed from the disposition imposed at the recorded disposition hearing. In re J.V., Cuyahoga App. Nos. 86849 and 86850, 2006-Ohio-2464. Finding merit to the appeal, we vacated his sentence and remanded the matter to the juvenile court to modify its journal entries to accurately reflect the disposition as articulated at the June 17, 2005, hearing. On January 5, 2007, the juvenile court imposed a sentence that included both juvenile and adult portions.
{¶ 4} On October 16, 2008, while J.V. was serving the juvenile portion of his sentence, the state filed a motion to invoke the adult sentence because of J.V.‘s conduct while he was in the custody of the Ohio Department of Youth Services. Following a hearing, the juvenile court found “by clear and
{¶ 5} J.V. filed his second appeal to this court challenging the juvenile court‘s decision to invoke the adult sentence. In re J.V., Cuyahoga App. No. 92869, 2010-Ohio-71. We determined that the sentence was void on account of the juvenile court‘s failure to advise J.V. of the mandatory five years of postrelease control associated with the adult portion of his sentence and failure to include postrelease control in the journal entry. Id. The matter was remanded to the juvenile court for a new hearing.
{¶ 6} On remand, the juvenile court found that its original findings would stand on the motion to invoke the adult portion of the sentence. The court proceeded to hold a sentencing hearing on February 12, 2010, at which the court included the juvenile disposition and stayed adult sentence of six years, and properly advised J.V. of postrelease control. The court proceeded to impose the adult portion of the sentence, which included six years in prison and five years of postrelease control.
{¶ 7} J.V. now appeals this ruling. He raises four assignments of error for our review. His first assignment of error provides as follows: “I: The
{¶ 8}
“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.”
{¶ 9} “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
{¶ 10} J.V. argues that the state failed to present sufficient evidence for the court to make several of the necessary findings by clear and convincing evidence. “Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. * * * Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118.
{¶ 11} J.V. first contends that he was not serving the juvenile portion of his SYO sentence at the time the juvenile court invoked his adult sentence. He erroneously attempts to rely upon the February 12, 2010, hearing as the date for which his adult sentence was invoked. However, as we discuss later, the February 12, 2010, hearing was held upon remand for the purpose of imposing postrelease control. The imposition of the adult portion of the SYO
{¶ 12} J.V. next argues that there was insufficient evidence that he engaged in conduct or acts that can result in the enforcement of an adult sentence.
{¶ 13} At the January 13, 2009, hearing, it was established that there was a culture of fighting at the Marion Juvenile Correctional Facility. The state presented evidence that J.V. engaged in fighting between July and September 2008, at the age of 20. Although the trial court found that some of the allegations were not supported by clear and convincing evidence, the court found there was sufficient evidence to show that J.V. was involved in an incident on September 25, 2008, in which he engaged in a large group fight and hit another individual, that he associated with the wrong individuals, that he had a reputation of being a part of the problem, and that he did not have control of himself. With regard to the September 25, 2008, incident, J.V. admitted he was engaged in the fight. He claimed he was hit by another individual and his reaction was “to get up and fight back.” He stated he “blanked out of the situation,” that he “got to hitting,” and that he was
{¶ 14} The trial court found by clear and convincing evidence that J.V. had engaged in either of the following misconduct: “1) The child 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; 2) the child engaged in conduct that created a substantial risk to the safety or security of the institution, the community, or the victim.” The court further found by clear and convincing evidence that “the child‘s conduct demonstrates that the child is unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.” We find there was sufficient evidence to support these findings as well as the other required factors under
{¶ 15} J.V.‘s second and third assignments of error provide as follows:
{¶ 16} “II: The juvenile court lacked the authority to invoke the suspended portion of a serious youthful offender sentence based on conduct that occurred before the suspended sentence was actually imposed.”
{¶ 17} “III: The juvenile court lacked the authority to impose and invoke the stayed adult portion of a serious youthful offender sentence because J.V. was over the age of 21.”
{¶ 18} Under these assignments of error, J.V. claims that the trial court did not issue a valid SYO sentence until February 12, 2010, which was the sentencing hearing held on remand to properly include postrelease control. At that time, the trial court recognized that the state‘s motion to invoke the adult portion of the SYO sentence was heard and submitted on January 13, 2009, and that the court ordered the adult portion of the sentence into execution on February 5, 2009.
{¶ 19} Although this court previously determined that the failure of the juvenile court to properly include postrelease control resulted in a void sentence, In re J.V., Cuyahoga App. No. 92869, 2010-Ohio-71, the effect of this decision on the juvenile court‘s judgment was governed by the Ohio Supreme Court case of State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958. At the time this court remanded the case for a proper sentencing that included the mandatory postrelease control, the Ohio Supreme Court had held that for “sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in
{¶ 20} Consistent with this authority, the determination by the juvenile court to invoke the adult portion of the SYO sentence on February 5, 2009, was not impacted by the subsequent decision from this court to remand the case for a new hearing to properly incorporate postrelease control in J.V.‘s dispositional sentence. Therefore, we overrule J.V.‘s second and third assignments of error.
{¶ 21} J.V.‘s fourth assignment of error provides as follows: “IV: The trial court erred in invoking the adult portion of appellant‘s SYO sentence based on judicial fact-finding and based on a relaxed burden of proof * * * .”
{¶ 22} J.V. asserts that the imposition of an adult prison sentence predicated on judicial fact-finding and based on a relaxed burden of proof violated his rights under the Sixth and Fourteenth Amendments of the United Stated Constitution and Ohio‘s constitutional counterparts. He argues that
{¶ 23} In State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, paragraph two of the syllabus, the Ohio Supreme Court held that “[c]onstitutional jury trial rights do not apply, in a pre-Foster sentencing, to findings that a juvenile court has made under Ohio‘s adult felony sentencing statutes when the juvenile court imposes the stayed adult portion of a serious-youthful-offender dispositional sentence pursuant to
{¶ 24} Until the Ohio Supreme Court declares otherwise, we find no constitutional violation. See In re D.F., Summit App. No. 25026, 2010-Ohio-2999. J.V.‘s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court, juvenile division, to carry this judgment into execution. The finding of delinquency having been affirmed, any bail or stay of execution pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and LARRY A. JONES, J., CONCUR