In re G.S.

2021 Ohio 3201

Opinion

[Cite as In re G.S., 2021-Ohio-3201.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE G.S. : : No. 110198 A Minor Child :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 16, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-19-109927

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Fallon Radigan and Warren Griffin, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Britta Barthol, Assistant Public Defender, for appellant.

SEAN C. GALLAGHER, P.J.:

Defendant-appellant G.S. appeals the disposition ordered by the

Cuyahoga County Court of Common Pleas, Juvenile Division (“juvenile court”), after

he was adjudicated delinquent of multiple felony and misdemeanor counts arising from a hazing incident. Upon review, we affirm the juvenile court’s disposition that

committed appellant to the Ohio Department of Youth Services (“ODYS”).

Background

On August 15, 2019, the state filed a 29-count complaint against

appellant in the juvenile court. The complaint included charges of rape, kidnapping,

abduction, sexual battery, unlawful restraint, and hazing. The charges arose from a

hazing incident that occurred in June 2019 at a high school football camp during

which appellant was accused, among other conduct, of sexually violating several

underclassmen with the use of a Theragun.1 Appellant initially entered a denial to

the charges.

On September 9, 2020, the juvenile court held a pretrial at which the

state placed an offer on the record, though the parties had not yet reached an

agreement. The juvenile court addressed pending motions and safety protocols

related to the Covid-19 pandemic. The juvenile court denied a motion to continue

filed by appellant’s trial counsel, recognizing the length of time the matter had been

pending, the safety protocols for trial, and latitude that would be provided in cross-

examination.

Another pretrial was held on September 11, 2020, at which the plea

agreement was stated on the record. The juvenile court recognized that serious

charges were involved, emphasized that the court was “not presuming that you’re

1 A Theragun is a percussive massage therapy device. guilty or delinquent of anything[,]” informed appellant that serious penalties could

be imposed, including placement within the ODYS, and indicated that the court was

keeping an “open mind” about confinement. The juvenile court engaged in a

thorough colloquy with appellant and informed him of the trial rights he would be

giving up. Appellant expressed his understanding and acknowledged that he was

entering his plea of his own free will and that he was not forced to enter his plea.

The state briefly set forth the facts relating to the hazing incident that gave rise to

the complaint, stating in part:

On or about June 10th, 2019, [G.S.], along with codefendant[s] * * * were inside of a room of their dormitory.

They recruited young men on the football team to come into the room. At this time those young men were told that they needed to be initiated by having a Theragun, which is a percussive therapy device, a massage therapy gun, placed up against and up their butt hole, the anal opening of their posterior.

This happened to a number of young men. There were five felony victims in this case, your Honor, and the evidence would have been that the Theragun went up into the anus of a number of those young men.

Each of those young men felt that they were unable to leave due to either peer pressure exerted by the upperclassmen to include [G.S. and the codefendants], or in addition, physical pressure exerted by (inaudible) and/or [G.S.] to keep them inside the room.

The juvenile court then reviewed the charges one by one. Appellant

entered an admission to 19 counts of the complaint including 3 counts of sexual

battery, in violation of R.C. 2907.03(A)(1), a felony of the third degree; an amended

count of kidnapping, in violation of R.C. 2905.01(A)(2), a felony of the second

degree; 11 counts of hazing, in violation of R.C. 2903.31(B)(1), a misdemeanor of the fourth degree; and 4 counts of unlawful restraint, a misdemeanor of the third

degree. The remaining ten counts were nolled. The juvenile court found the

admissions were knowingly, voluntarily, and intelligently entered and adjudicated

appellant delinquent. The matter was continued for a dispositional hearing to be

held on November 23, 2020. The court ordered a juvenile sex offender registration

and notification (“JSORN”) assessment and a probation report.

The state and the defense each filed a sentencing memorandum. At

the dispositional hearing, appellant was present, along with counsel and his parents.

A co-delinquent (J.M.), his parents, and his counsel also were present. Appellant’s

investigating probation officer (“IPO”) was not present because of a Covid-19

quarantine. However, the co-delinquent’s IPO was present on behalf of the

probation department. The assistant prosecutors also were present.

The co-delinquent’s IPO spoke regarding appellant’s probation

report, which the court stated it had read. The juvenile court was informed that this

was appellant’s first involvement in the court, he graduated high school, he was

working, and was enrolled to attend community college. Appellant also had no

diagnosed or reported mental-health or substance-abuse issues, and there were no

reported problems in the home. Appellant had a very low risk score of “3.” The

juvenile court was aware that appellant’s IPO had not made a recommendation

because the Ohio Guidestone’s JSORN assessment was not yet completed and that appellant did not cause the delay.2 Appellant’s IPO was available to be contacted by

phone; however, the judge did not find this necessary and indicated the co-

delinquent’s IPO had answered the court’s questions.

The state addressed the court and offered as exhibits into evidence a

photograph, victim impact letters, and a Snapchat video. The state indicated that

there were 11 victims, some that experienced worse treatment than others. Some of

the victims had the Theragun “forced” up their anus by appellant. For instance, one

of the victims repeatedly asked to leave the room, appellant told him he could not

leave, and he was held down and there “was penetration.” The state indicated that

from the investigation it was known that appellant “did it worse to these

individuals,” that when appellant used the Theragun, “these boys were penetrated,”

and there was no penetration when the co-delinquent J.M. used the Theragun.

Some victims were “tapped on the buttocks versus being penetrated.” A statement

was read from one victim’s family expressing that appellant had not shown any

remorse for his actions, had not truly taken accountability, and engaged in conduct

demonstrating a disregard for the victims and the justice system. The state indicated

that appellant deleted messages about the incident. He posted a Snapchat video that

says, “Innocent until proven guilty, preservation boy” and includes a heart symbol.

As argued by the state, “[T]his is not a joke. There were 11 victims here, some of

2 It appears that there was a delay in the referral: appellant completed the first part of the assessment with Ohio Guidestone, and the second part of the assessment was scheduled after the date of the dispositional hearing. [whom] were sexually assaulted, * * * these individuals deserve better * * * it went

way too far, and [the victims’ lives] have been changed forever * * *.”

Appellant’s trial counsel indicated that appellant was sorry for what

happened and discussed mitigating factors. Appellant addressed the court and

apologized to those involved. He indicated he was taking steps to be a better person,

he was residing in Columbus with roommates, he was working, and he was planning

to attend Columbus State with the goal of transferring to Ohio State University. He

explained the Snapchat video he created was “[s]tupidity, ignorance, lack of

knowledge.” He indicated he had no prior juvenile court history and he had no

substance-abuse issues. Appellant’s father indicated that appellant and the co-

delinquent were “good kids,” they had never been in trouble, and that they made a

bad decision and things got out of hand.

On Count 3, the kidnapping count, the juvenile court committed

appellant to the ODYS for an indefinite term consisting of a minimum period of 12

months and a maximum period not to exceed the child’s attainment of the age of 21.

On each of the sexual battery counts, the juvenile court committed appellant to the

ODYS for an indefinite term consisting of a minimum period of 6 months and a

maximum period not to exceed the child’s attainment of the age of 21, and the court

ordered the commitment to be served concurrent to Count 3. On each of the

remaining counts, which were misdemeanor counts, the court imposed a 90-day

commitment and ordered the commitment to be served concurrent with Count 3. The juvenile court denied appellant’s motion for reconsideration and

for a new dispositional hearing. Appellant timely filed this appeal.

Law and Analysis

Appellant raises three assignments of error for our review. Under the

first assignment of error, appellant claims the juvenile court committed plain error

by imposing a disposition without the completion of the court-ordered assessment

and the probation report.

Appellant argues it was plain error for the juvenile court to proceed

to disposition without the completion of the JSORN assessment and without

appellant’s IPO’s presence and recommendation because he claims these would

have assisted the juvenile court in imposing an appropriate disposition. Appellant

represents that his IPO stated in a letter attached to the motion for reconsideration

that she realistically would have been looking at a community control sanction with

the proper counseling services to address any recommendations from the JSORN

assessment. However, the juvenile court was in possession of the probation report,

heard from a representative from the probation department, was informed of

mitigating facts, and acted within its discretion in proceeding to disposition.

Appellant fails to cite any authority, and we have found none, to support a finding

of plain error under these circumstances.

A judge enjoys a great deal of discretion in sentencing. In re D.S., 148

Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d 223, ¶ 20. Our review of the transcript

reflects that the co-delinquent’s IPO was present on behalf of the probation department and discussed appellant’s probation report. The juvenile court was

aware that the report did not include a recommendation because the JSORN

assessment had not yet been completed. The juvenile court indicated that its

questions had been answered by the co-delinquent’s IPO, and the court did not find

speaking to appellant’s IPO, who was available by phone, to be necessary. No

motion to continue the dispositional hearing was made, and the juvenile court

proceeded to impose disposition without any objection.

Even if appellant’s IPO had provided a specific recommendation of

community control, it is not clear that this would have changed the outcome of the

juvenile court’s disposition. The juvenile court had reviewed the probation report

and was informed that appellant had no history in the courts, he had no reported

problems, he was working and was planning to attend community college in

Columbus, and he had a risk score of “3.” Further, appellant’s father described him

as a good kid without any issues or cause for concern. Appellant addressed the court

directly, apologized for his actions, noted the positive steps he was taking toward his

future, and explained the Snapchat video he posted. Appellant’s attorney requested

a disposition of community control sanctions in his sentencing memorandum and

presented mitigating factors to the court. However, the state ensured that the

seriousness of the offenses and the impact upon the victims were not overlooked.

Our review reflects that the trial court acted within its discretion in

proceeding to disposition and that no plain error occurred. Moreover, appellant

fails to demonstrate that the asserted error affected the outcome of the proceedings or that he was otherwise prejudiced. Accordingly, the first assignment of error is

overruled.

Under the second assignment of error, appellant claims the juvenile

court abused its discretion in determining a commitment to the ODYS was the

appropriate disposition for appellant.

A disposition ordered by the juvenile court will not be reversed absent

an abuse of discretion. In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d

921, at ¶ 6; In re K.M.C., 8th Dist. Cuyahoga No. 103449, 2016-Ohio-5322, ¶ 4. An

abuse of discretion implies that the court’s attitude is unreasonable, arbitrary, or

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

(1983). When reviewing for an abuse of discretion, “‘an appellate court is not free

to substitute its judgment for that of the trial judge.’” State v. Herring, 94 Ohio

St.3d 246, 255, 762 N.E.2d 940 (2002), quoting Berk v. Matthews, 53 Ohio St.3d

161, 169, 559 N.E.2d 1301 (1990).

Pursuant to R.C. 2152.19(A), “If a child is adjudicated a delinquent

child, the court may make any of the [listed] orders of disposition, in addition to any

other disposition authorized or required by [R.C. Chapter 2152] * * *.” “Dispositions

imposed under the delinquency statutes are to be ‘reasonably calculated to achieve

the overriding purposes’ of R.C. 2152.01” and “must also be ‘commensurate with and

not demeaning to the seriousness of the * * * conduct and its impact on the victim,

and consistent with dispositions for similar acts committed by similar delinquent

children.’” State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 46, quoting R.C. 2152.01(B). The overriding purposes for dispositions that a

juvenile court must consider 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, hold the offender accountable for the

offender’s actions, restore the victim, and rehabilitate the offender.” R.C.

2152.01(A). “These purposes shall be achieved by a system of graduated sanctions

and services.” Id.

Appellant claims that the ODYS commitment was purely punitive

rather than rehabilitative, that the juvenile court did not properly weigh the

available dispositions, and that he was not offered any services and received the

most severe disposition for a juvenile. He argues that the victims were not

requesting an ODYS commitment and his probation officer was realistically looking

at a community control sanction. Appellant states that this was his first time in the

court system, he was working and living in the community for 15 months without

incident, and he was enrolled to begin classes at a community college. Appellant

also states that he showed remorse and apologized to the victims, and he claims that

he could have been rehabilitated without an order of commitment. Appellant

focuses his argument on the rehabilitative purpose of delinquency dispositions.

However, holding the offender accountable for his actions and restoring the victims

also are among the “overriding purposes” of juvenile disposition under

R.C. 2152.01(A). Appellant admitted to kidnapping and multiple counts of sexual

battery, unlawful restraint, and hazing. The charges stemmed from a hazing

incident during which multiple victims had a Theragun forced up their anuses.

Appellant initially made light of the situation. The hazing incident that occurred was

not a joking matter. At the pretrial hearing at which appellant entered his admission

to the charges, the juvenile court informed appellant that serious penalties could be

imposed for the felonies including “a minimum of one year [in ODYS] up to [his]

21st birthday * * *.” Appellant indicated his understanding. The juvenile court

expressed that it was “keeping an open mind” with regard to the disposition.

At the dispositional hearing, the juvenile court heard from the

probation department, the state, appellant’s counsel, appellant, and his parents.

The juvenile court also had reviewed the sentencing memoranda, the probation

report, the victim impact letters, and the Snapchat video. The court was aware of

mitigating factors and the commendable efforts that appellant was taking toward

his future. The seriousness of the conduct and the impact upon the victims were

also considered. See R.C. 2152.01. The court indicated at the dispositional hearing

that it had received defense counsel’s sentencing recommendation, which was for

community control sanctions. The state indicated at the hearing that it would defer

to the court on sentencing. The state also requested the court punish appellant “as

[the court] see[s] fit” in the state’s sentencing memorandum.

Although appellant argues that the juvenile court gave disparate

treatment to a similarly situated co-delinquent, appellant fails to recognize that he engaged in distinct and more serious conduct from the co-delinquent.3 Appellant

was adjudicated delinquent on four felony counts, which included three counts of

sexual battery and one count of kidnapping, in addition to the misdemeanor counts.

There were 11 victims. The investigation showed some victims were treated worse

than others, appellant would not permit a victim to leave, and appellant used much

more force and penetrated several victims, whereas the co-delinquent did not

penetrate any victims.

It is evident that the juvenile court considered the statutory purposes

in rendering the disposition. As the juvenile court stated in its journal entry, “[t]his

court is guided for dispositional purposes by ORC 2152.01,” which the court set forth

and gave due consideration. Upon the record before us, it cannot be said that the

juvenile court’s disposition was not reasonably calculated to achieve those purposes,

commensurate with and not demeaning to the seriousness of the appellant’s conduct

and its impact on his 11 victims, and consistent with dispositions for similar acts

committed by similar delinquent children. The ODYS sanction was well within the

broad discretion of the juvenile court, and there is nothing in the record to suggest

that the juvenile court acted unreasonably, arbitrarily, or unconscionably.

The juvenile court did not abuse its discretion in committing

appellant to the ODYS. Appellant’s second assignment of error is overruled.

3 Appellantstates that the co-delinquent received a suspended ODYS commitment and a 90-day commitment to a juvenile detention center that could be reduced. The co- delinquent was adjudicated delinquent on one felony count for kidnapping, and the remaining counts were misdemeanors. Under the third assignment of error, appellant claims he was denied

his constitutional right to effective assistance of counsel when his trial counsel failed

to request a continuance of the dispositional hearing. He argues that a continuance

should have been requested in order to obtain the presence of appellant’s IPO and

to allow for the completion of the JSORN assessment and probation report.

“[A]ppellate courts generally review ineffective assistance of counsel

claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel

claim, the defendant must show that his trial counsel’s performance was deficient

and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 49. “[A] court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance * * *.” Strickland at 689. To establish prejudice,

the defendant must demonstrate there is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

Appellant cannot demonstrate that counsel’s performance was

deficient or that any resulting prejudice occurred. Although the JSORN assessment

had not been completed and the probation report lacked a specific recommendation,

the probation report included the mitigating facts and was reviewed by the court.

Also, the co-delinquent’s IPO was present on behalf of the probation department to address appellant’s probation report, appellant’s IPO could have been reached by

phone, and the court expressed that its questions had been adequately answered by

the co-delinquent’s IPO. Appellant’s counsel presented mitigating factors, and he

requested a disposition of community control sanctions in his sentencing

memorandum that was reviewed by the juvenile court. The juvenile court was

guided by the dispositional purposes set forth under R.C. 2152.01 in rendering its

disposition.

Upon the record before us, it cannot be said that counsel was

ineffective for failing to request a continuance, and there is nothing to suggest a

reasonable probability that the disposition would have been any different if the

JSORN assessment had been completed and a recommendation for community

control had been made by appellant’s IPO.4 Accordingly, we overrule the third

assignment of error.

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 issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution. The

4 Insofar as the JSORN assessment had not been completed, a juvenile offender classification hearing is not required until appellant is released from the secure facility. R.C. 2152.83(B)(1) and (D)(6). Nonetheless, we recognize that appellant’s IPO was awaiting this assessment to make a recommendation. 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 commitment.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and LISA B. FORBES, J., CONCUR