State v. Kimbrough

2020 Ohio 3175

• Court: Ohio Court of Appeals
• Decided: June 4, 2020
• Docket: 108172 & 108173
• Status: Published

Opinion

[Cite as State v. Kimbrough, 2020-Ohio-3175.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : Nos. 108172 and 108173 v. :

TERRANCE KIMBROUGH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: June 4, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-628578-A and CR-18-628608-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Yasmine M. Hasan and John Kirkland, Assistant Prosecuting Attorneys, for appellee.

Timothy F. Sweeney, for appellant.

ANITA LASTER MAYS, J.:

In these consolidated criminal appeals, defendant-appellant

Terrance Kimbrough (“Kimbrough”), who was fifteen years old at the time of the

incidents underlying the charges, challenges the decision of the Cuyahoga County

Common Pleas, Juvenile Court Division, to transfer his cases to the adult criminal division for adjudication, and the adult court’s imposition of a seven-year prison

sentence. We affirm the trial court’s judgment but remand for nunc pro tunc entries

to document the imposition of concurrent sentences in the two cases.

I. Background and Facts

A. Collinwood Case

A complaint was issued against Kimbrough by the juvenile court in

J.C. No. DL-17119224 (Cuyahoga C.P. No. CR-18-628578) (hereinafter

“Collinwood”) on the following counts arising from the December 11, 2017 robbery

and assault of the pastor, Father John Kumse (“Father Kumse”) of St. Mary’s Parish

in Cleveland’s Collinwood neighborhood:

Count 1 — Aggravated robbery, R.C. 2911.01(A)(1), first-degree-felony;

Count 2 — Felonious assault, R.C. 2903.11(A)(1), a second-degree felony;

Count 3 — Receiving stolen property, R.C. 2913.51(A), a fourth-degree felony;

Count 4 — Tampering with evidence, R.C. 2921.12(A)(1), a fourth- degree felony; and

Count 5 — Tampering with evidence, R.C. 2921.12(A)(1), a fourth- degree felony.

The first three counts carried one- and three-year firearm specifications and a

weapon forfeiture. Charges were also filed against Kimbrough’s accomplices: J.M., M.M., T.P., and A.W.1 Boundover with Kimbrough, J.M. and A.W. subsequently

entered into plea agreements.

B. Detention Center Case

In Cuyahoga C.P. Case No. CR-18-628608 (J.C. No. DL-18100785),

during his detention at the Juvenile Justice Center (“Detention Center”) for the

Collinwood case, Kimbrough was charged with eight additional counts arising from

his alleged involvement in the January 8, 2018 uprising in the incarceration pod

along with D.H., E.B., D.W., T.M.A., and A.R.T. who were not involved in the

Collinwood case:

Count 1 — Escape, R.C. 2921.34(A)(1), a felony of the second-degree;

Counts 2 and 3 — Inciting to violence, in violation of R.C. 2917.01(A)(1) and (A)(2), felonies of the third-degree;

Counts 4 and 5 — Aggravated riot, in violation of R.C. 2917.02(B)(2) and (A)(2), felonies of the third and fourth degrees, respectively;

Count 6 — Vandalism, in violation of R.C. 2909.05 (B)(2), a felony of the fourth degree;

Count 7 — Possessing criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree; and

Count 8 — Disorderly conduct, in violation of R.C. 2917.11(A)(5), a misdemeanor of the fourth-degree misdemeanor.

1 A.W. is sometimes referred in the record to by the nickname “A.J.,” but is identified as A.W. herein for purposes of consistency. T.P. is also erroneously identified in some portions of the record as “T.T.” but is consistently identified herein as T.P. C. Probable Cause and Amenability

On December 28, 2017, and January 25, 2018, respectively, pursuant

to Juv.R. 30 and R.C. 2152.10(B), the state moved the juvenile court to relinquish

jurisdiction for adult criminal prosecution in the Collinwood and Detention Center

cases.

The probable cause hearing in the Collinwood case was held on

March 13, 2018, for Kimbrough, J.M., and A.W. The state presented four witnesses

and multiple exhibits. The Detention Center probable cause case was held on

March 16, 2018. The state presented five witnesses and multiple exhibits. No

evidence was presented by the defense in either hearing.

The trial court found probable cause lacking for Count 5, the fourth-

degree felony aggravated rioting charge under R.C. 2917.02(A)(2), in the Detention

Center case. The trial court determined that probable cause existed that Kimbrough

committed or was complicit in the remaining counts and that those acts constituted

criminal offenses if committed by an adult.

The amenability hearings were held on May 4, 2018, after the

mandatory psychological evaluation. Father Kumse, Detective Kevin Warnock

(“Det. Warnock”) of the Cleveland Police Department, Terrance Jenkins

(“Jenkins”), acting Director of Detention Services for the Juvenile Detention Center,

and Sergeant Thomas Bradley of the Sheriff’s Department testified. Videos of the

incidents and photographs of the damages were admitted. No witnesses were

presented by the defense. The trial court concluded that Kimbrough was not amenable to rehabilitation in the juvenile justice system and relinquished

jurisdiction in both cases.

D. Adult General Criminal Division

On May 14, 2018, the following eight of the total fifteen-count

Collinwood indictments were handed down against Kimbrough:

Count 1 — Attempted murder, alleged violation of R.C. 2903.02(A)/ 2923.02, a felony of the first-degree;

Count 2 — Felonious assault in alleged violation of R.C. 2903.11(A)(2), a felony of the second-degree;

Counts 3 and 4 — Aggravated robbery in alleged violation of R.C. 2911.01(A)(1) and (A)(3), felonies of the first-degree;

Count 5 — Kidnapping in alleged violation of R.C. 2905.01(B)(2), a felony of the first-degree;

Count 6 — Receiving stolen property, in violation of R.C. 2913.51(A), a felony of the fourth-degree;

Count 7 — Carrying a concealed weapon (F-4); and

Count 8 — Improperly handling a firearm in a motor vehicle (F-4).

Cuyahoga C.P. No. CR-628608-A. The remaining counts were charged against co-

delinquents J.M., A.W., and K.R. (Cuyahoga C.P. Nos. CR-628608-B, C, and D).

Counts 1- 5 included one- and three-year firearm specifications, two

weapons-forfeiture specifications, and a criminal-gang-activity specification.

According to Kimbrough, only Counts 2, 3, and 6 were the subject of the juvenile

court proceedings. Also, on May 14, 2018, in Cuyahoga C.P. No. CR-18-628578,

Kimbrough was indicted, as the sole defendant for the same eight counts that were

contained in the juvenile court Detention Center complaint. After discovery concluded, on December 6, 2018, Kimbrough

entered into plea agreements in both cases. In the Collinwood case, the then 16-

year-old Kimbrough pleaded guilty to:

Count 2 — Felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second-degree;

Count 3 — Aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first-degree; and

Count 6 — Receiving stolen property, in violation of R.C. 2913.51(A), a felony of the fourth-degree.

Counts 2 and 3 included one-year firearm and two weapons forfeiture specifications.

All remaining counts and specifications, including gang activity, were nolled.

In the Detention Center case, Kimbrough pleaded guilty to:

Count 1 — Escape, R.C. 2921.34(A)(1), a felony of the second-degree;

Count 4 — Aggravated riot, in violation of R.C. 2917.02(B)(2), a felony of the third-degree; and

Count 6 — Vandalism, in violation of R.C. 2909.05 (B)(2), a felony of the fourth-degree.

In addition, the state explained:

For purposes of the record, the State has indicated to defense counsel that it would not oppose concurrent sentences in these two cases, Your Honor. There has been no actual plea as to an agreed term of any length, but the State is not going to oppose concurrent sentences if that’s the Court’s pleasure.

(Tr. 9.)

Kimbrough was sentenced on January 9, 2019. In the Collinwood

case, Count 2 felonious assault and Count 3 aggravated robbery merged as allied

offenses. Sentencing proceeded on Count 3 for a term of six years on the base charge plus the one-year firearm specification, an 18-month concurrent term on Count 6,

five years of mandatory postrelease control and forfeiture of the handgun.

Kimbrough was sentenced in the Detention Center case to two years

on Count 1 escape, 12 months on Count 4 aggravated riot, and nine months on

Count 6 vandalism, to run concurrent with each other and with the seven-year

sentence in the Collinwood case. The trial court also advised Kimbrough that the

three years of mandatory postrelease control is overridden by the five years in the

Collinwood case so that the five-year mandatory postrelease control applied.

Court costs were imposed in both cases but no fines. Kimbrough

received jail-time credit in both cases for time served up and through the date of his

transfer. Each sentencing entry provides that Kimbrough received jail-time credit

for 365 days. However, we note that neither trial court journal entry states that the

sentences in each case run concurrent to one another, but the record reflects that

they are concurrent sentences. (Tr. 65.) The trial court shall issue a nunc pro tunc

entry to reflect that the sentences are concurrent. “The function of a

nunc pro tunc is not to change, modify, or correct erroneous judgments, but merely

to have the record speak the truth.” State v. Kimmie, 8th Dist. Cuyahoga No. 98979,

2013-Ohio-2906, ¶ 20, citing Ruby v. Wolf, 39 Ohio App. 144, 147, 177 N.E. 240 (8th

Dist.1931); Dentsply Internatl., Inc. v. Kostas, 26 Ohio App.3d 116, 118, 498 N.E.2d

1079 (8th Dist.1985).

The cases have been consolidated for appeal. II. Assignments of Error

Kimbrough assigns as error:

I. The Cuyahoga County Juvenile Court violated Kimbrough’s right to due process of law, because that court’s probable cause determination was not supported by sufficient, reliable, and credible evidence, in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.

II. The juvenile court abused its discretion and violated 15-year-old Terrance Kimbrough’s right to due process of law when it determined that he was not amenable to treatment in the juvenile system, in violation of R.C. 2152.12(B); Fifth and Fourteenth Amendments to the U.S. Constitution, and Article I, Sections 10 and l6, Ohio Constitution.

A. The juvenile court cannot fail to consider available treatment options in the juvenile system merely because the youth was involved in the immature acts of destroying and/or defacing Detention Center property.

B. The juvenile court cannot ignore obvious evidence of immaturity, poor judgment, unformed and/or undeveloped character, and susceptibility to negative influences and peer pressure.

C. The juvenile court lost focus on the statute’s presumption of retention in the juvenile system and disregarded the professional assessment that numerous factors suggested Kimbrough was amenable to treatment.

D. The juvenile court never considered the wide array of dispositional options available to it for this young teen.

E. The juvenile court did not consider how Kimbrough would fare in adult prison.

III. The sentence imposed in the adult court is contrary to law and/or not supported by the record, thereby requiring this Court to take action under State v. Jones, 2018-Ohio-498 (8th Dist. App. 2018) (en banc) and R.C. 2953.08. III. Probable Cause

A. Standard of Review

Kimbrough argues that the trial court’s probable cause

determination was not supported by sufficient, reliable, and credible evidence.

Kimbrough was 15 years of age at the time the crimes were committed.

R.C. 2152.12(A)(1)(a)(ii) provides:

(a) After a complaint has been filed alleging that a child is a delinquent child for committing an act that would be aggravated murder, murder, attempted aggravated murder, or attempted murder if committed by an adult, the juvenile court at a hearing shall transfer the case if either of the following applies: * * *

(ii) The child was fourteen or fifteen years of age at the time of the act charged, section 2152.10 of the Revised Code provides that the child is eligible for mandatory transfer, and there is probable cause to believe that the child committed the act charged.

Id.

R.C. 2152.10(B) governs in this case:

(B) Unless the child is subject to mandatory transfer, if a child is fourteen years of age or older at the time of the act charged and if the child is charged with an act that would be a felony if committed by an adult, the child is eligible for discretionary transfer to the appropriate court for criminal prosecution. In determining whether to transfer the child for criminal prosecution, the juvenile court shall follow the procedures in section 2152.12 of the Revised Code. If the court does not transfer the child and if the court adjudicates the child to be a delinquent child for the act charged, the court shall issue an order of disposition in accordance with section 2152.11 of the Revised Code.

(Emphasis added.) Id. In considering the propriety of the discretionary bindover of a 15-

year-old under R.C. 2152.12(B), the juvenile court determines whether the state’s

evidence credibly supports each element of the offense to find that probable cause

exists that the juvenile committed the offense. In re C.G., 8th Dist. Cuyahoga

No. 97950, 2012-Ohio-5286, ¶ 31, citing State v. Iacona, 93 Ohio St.3d 83, 93, 2001-

Ohio-1292, 752 N.E.2d 937:

Probable cause in this context is not guilt beyond a reasonable doubt; it is evidence that raises more than a suspicion of guilt. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶16. This standard requires the juvenile court to “evaluate the quality of the evidence presented by the state in support of probable cause as well as any evidence presented by the respondent that attacks probable cause.”

In re C.G. at ¶ 31, quoting Iacona at 93.

We apply a dual standard to our review of the juvenile court’s

determination. On the one hand, we “defer to the court’s credibility determinations

by reviewing for an abuse of discretion.” Id. On the other hand, we “conduct a de

novo review” of the trial court’s legal conclusion that sufficient probable cause

existed to “believe that the juvenile committed the charged act.” Id., citing In re

A.J.S. at ¶ 1.

We are also cognizant that the probable cause standard is not as

stringent as that of beyond a reasonable doubt and considers whether the state has

demonstrated more than a mere suspicion of guilt when weighed upon any evidence

presented by the defense. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897

N.E.2d 629, ¶ 16. B. Discussion

1. Collinwood Case

Father Kumse testified at the probable cause hearing for Kimbrough,

J.M., and A.W. Father Kumse said that he was walking his dog on the parish campus

at approximately 6:00 p.m. on December 11, 2017, when he noticed lights at the

parish school. He took care of other tasks and, a couple of hours later, decided to

return to the building to turn off the lights and secure other areas. Father Kumse

noticed a parked dark-colored minivan and heard several voices but did not

investigate.

Father Kumse saw someone walking quickly down the alleyway near

the chicken coop which was not unusual because neighbors used the path as a

shortcut. He was walking toward the rectory when two young females ran by him

toward the minivan. Two young males emerged from the bushes near the parking

lot and told Father Kumse to give them the eggs. Father Kumse froze when he saw

that one had a gun. The males stood 10 to 15 feet away from him.

Father Kumse began to yell and run and heard a shot. He turned to

see if the youth were still in pursuit and heard another shot as he lost his balance

and fell in the parking lot. He ran, fell again, and turned to see the group running

toward the minivan that had pulled up beside the school building. The minivan left.

Father Kumse concluded that the females must have come from a

nearby store. The store owner confirmed that the females had been at the store and

recognized one of them as the daughter of an acquaintance. Father Kumse returned to the rectory and contacted 911. Father Kumse was sure that he only saw one gun

but cannot say whether it was real or fake.

Father Kumse described the parish video surveillance footage

recorded by multiple cameras at the premises. He identified the two females that he

encountered who were heading toward the store and later running past Father

Kumse toward the parking lot. Another clip depicts Father Kumse running and

falling. Father Kumse also identified the bushes that the males emerged from, where

he was when he heard the shots and the minivan that was pulling up to pick up the

individuals.

Another camera angle showed the two males coming from the area

of the minivan and walking to the areas by the bushes. The males appeared after the

females ran by Father Kumse. He identified a flash depicted on another segment as

evidence of the shot.

Father Kumse identified the school, rectory, parking lot, and other

areas of the parish campus on a map and recalled that he dropped the eggs that he

collected from the chicken coop when he fell. A medical examination revealed severe

inflammation and a tear to Father Kumse’s left rotator cuff. Father Kumse was

unable to identify the individuals.

Det. Warnock and Detective Donald Nuti (“Det. Nuti”) received an

aggravated burglary report involving a minivan that was stolen from a juvenile

group home. They also viewed a video of the Collinwood case incident that depicted

a minivan that fit the description of the stolen vehicle. The group home administrator identified group home resident J.M. as a possible participant in the

minivan theft. The store owner provided information about T.P., one of the two

females at the store that evening. T.P.’s name was also listed as a possible suspect

in the minivan theft report.

Det. Warnock and Det. Nuti met with J.M. and his parents. J.M.

confessed that he was present at the incident and shot a gun twice. He also identified

his accomplices and his description matched the events depicted in the surveillance

videos. J.M. advised that the other suspects were staying at T.P.’s home and

Det. Warnock and Det. Nuti located the minivan two houses north of T.P.’s house.

(Tr. 68.) Det. Warnock and Det. Nuti knocked on the door. Kimbrough, M.M., and

T.P. emerged while allegedly muttering M.B.K., the abbreviation for My Brother’s

Keeper gang.

Kimbrough told Det. Warnock and Det. Nuti that T.P. hid a gun at

her house. T.P.’s father gave permission to search. A .38 caliber firearm with six

rounds and two spent casings were discovered in a bedroom. An inoperable .22

caliber semiautomatic pistol in the parent’s room in a gun case. No shell casings

were found at the crime scene. (Tr. 72.) Det. Warnock identified multiple

photographs of the scene and the minivan.

Det. Nuti interviewed A.W. who admitted his role in the Collinwood

incident and identified the accomplices. “He said he was there, there were guns in

the van, he held the gun that they went out to rob the priest, but he said he didn’t

need the gun and he left the gun in the car.” (Tr. 147.) This testimony contradicts the video and photographic evidence that shows A.W. point a gun and shoot at

Father Kumse.

T.P. pleaded guilty to aggravated robbery with a one-year firearm

specification and tampering with evidence and agreed to testify against the others.

T.P. identified photographs from the surveillance video and identified herself, K.M.,

the other female that was present, J.M., A.W., M.M., and Kimbrough whose

nickname was “Man-Man.” (Tr. 99.)

T.P. met Kimbrough a year earlier and they talked almost daily.

(Tr. 102.) T.P. identified a photograph of the minivan and admitted that, the day

before the incident, Kimbrough was driving T.P., M.M., and J.M. around in the

group home minivan. The next day, Kimbrough drove T.P., J.M., and M.M. to pick

up K.M. and A.W. from school. They parked in the parish church parking lot so that

T.P. and K.M. could visit a friend who lived in a house adjacent to the lot.

The friend was not at home, so the two females headed to the store.

They were running back across the parish pathway toward the van when they saw

Father Kumse walking.

[T]hat’s when * * * J.M. and A.[W.] came out the bushes talking about I need everything and I thought they was talking to us because we had the cookies. But as soon as we got in the van, that’s when everything happened. * * *

That’s when we heard the priest screaming and then we heard the gunshots. (Tr. 117.) Kimbrough and M.M. were still in the van. J.M. and A.W. returned to the

van and the group departed. They dropped off K.M. and A.W. and the others went

to T.P.’s house.

T.P. saw Kimbrough with a revolver at her house prior to the

incident. A.W. had a gun at the parish campus and J.M. had the revolver. When

police arrived, T.P. moved the revolver from the table beside her bed where

Kimbrough had allegedly placed it and hid it in a closet. T.P. also confirmed that

Kimbrough belonged to the M.B.K. gang.

The group did not discuss committing a robbery when they were

driving to the parish campus. T.P. did not see Kimbrough with a gun or hear him

talk about a gun. The second gun discovered during the search of T.P.’s home was

not the gun that A.W. had in the van during the Collinwood incident.

The defense presented no witnesses or exhibits. We agree with the

trial court’s observation that T.P.’s testimony weighs heavily in favor of probable

cause. Kimbrough, A.W., and J.M. “are all tied together” by the “admissions they

made to law enforcement” and the testimony of T.P. (Tr. 169-170.)

The evidence produced and the testimony of the Det. Warnock,

Det. Nuti, Father Kumse, and T.P. establish that: (1) Kimbrough was at the scene;

(2) he was driving the van; (3) shots were fired; and (4) he was complicit in the

events. Kimbrough and the co-delinquents stayed at T.P.’s house after the incident.

Kimbrough’s possession of the revolver prior to and after the incident was

established by T.P., though J.M. wielded the weapon during the attempted robbery. The probable cause standard is not as stringent as that of beyond a

reasonable doubt. It considers whether the state has demonstrated more than a

mere suspicion of guilt when weighed upon any evidence presented by the defense.

In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 42. The

evidence and testimony support that Kimbrough drove the van, remained at the

scene, and drove the group away after the incident. J.M. admitted, and T.P.

confirmed, that he had a revolver during the commission of the incident, that shots

were fired and that J.M. and A.W. returned to the van with guns. Thus, the

aggravated robbery charge with the gun specification is supported.

Further, the record supports the trial court’s observations on the

remaining counts, finding that Kimbrough

[i]s at least on the probable cause level culpable with respect to the complicity. He was more than a bystander in this instance. Aiding and abetting, that is what [Kimbrough] was doing in this instance. Same thing holds true for the felonious assault * * * and the receiving stolen property [charges] with the one- and three-year gun spec.

(Tr. 175.) Also, supporting probable cause for tampering with evidence, “[a]t some

point” subsequent to J.M. shooting the gun, it “finds its way into Kimbrough’s

hands” pursuant to T.P.’s testimony that Kimbrough put the revolver on the table by

T.P.’s bed and T.P. hid the weapon when police arrived. (Tr. 174.)2

2 As the state points out, Kimbrough was not convicted of tampering with evidence and so was not prejudiced as a result. State v. Frazier, 8th Dist. Cuyahoga Nos. 106772 and 106773, 2019-Ohio-1433, ¶ 30, citing State v. Lenard, 8th Dist. Cuyahoga No. 99149, 2013-Ohio-1995, ¶ 19 (“appellant benefits from a dismissal because he has one fewer conviction.”). After a de novo review of the record, we do not find that the trial

court abused its discretion by determining that probable cause exists that

Kimbrough was a participant in the crimes charged. The trial court lawfully

exercised the discretionary bindover determination and ordered a psychological

examination prior to the amenability hearing.

2. Detention Center Case

The probable cause hearing in this case was held on March 16, 2018,

for co-delinquents Kimbrough, T.A., E.B., and D.W. Detention Center Activities

Assistant Shauna Nevel (“Nevel”) testified that a detention housing unit contains

three living pods. Each living pod contains ten living cells for sleeping and a

common living area. There is also a common day room for the three living pods in

each housing unit that is only accessible by Detention Center permission. Detainees

spend the majority of their time in the respective pods. When there are more than

ten detainees per pod, “sleeping boats” are set up in the room.

Twelve detainees were assigned to Kimbrough’s pod the day of the

incident. Nevel spent considerable time describing the security video depictions

though she was not present the evening the incident occurred. Kimbrough, T.A.,

E.B., and two others were playing cards in the pod living area. A few minutes later,

the detainees begin throwing playing cards, books, crates, flipping tables, and

throwing other items in the room. Kimbrough is seen throwing books and a crate, a

chair, and a staff table. Kimbrough’s activities included using chairs to block the

pod entrance, throwing a table, throwing a chair at the television, striking windows with a table leg, jumping on sleeping boats, striking the television, water fountain,

and ceiling lights with a table leg and throwing a table leg at various windows.

Witnesses testified that the group was attempting to escape. The

disturbance lasted for approximately 90 minutes with periodic calmer interludes.

Cuyahoga County Sheriff’s Deputy Antonios Makrinos (“Makrinos”)

responded with the S.W.A.T. unit to a “riot-type situation in one of the pods.”

(Tr. 82.) One of the pods had

a bunch of smashed-up glass. The windows were smashed. A bunch of males had pipes. I believe they were the legs of a table. They were hitting windows. They spilled liquids all over the floors and were not compliant with any orders from the staff.

(Tr. 82.) The detainees were taunting the officers, forcefully hitting the window

glass with table legs and failed to obey directions. Makrinos described T.A. and E.B.

as the apparent ring leaders.

Cuyahoga County Sheriff’s Deputy Chris Cepik (“Cepik”) echoed

Makrinos’s observations. Cepik added that water was pouring from the damaged

sprinkler system and detainees were lathering their bodies with soap.

Kimbrough was charged with: escape, R.C. 2921.34(A)(1); inciting

to violence, R.C. 2917.01(A)(1) and (A)(2); aggravated riot, R.C. 2917.02(B)(2) and

(A)(2); vandalism, R.C. 2909.05 (B)(2); possessing criminal tools, R.C. 2923.24(A);

and disorderly conduct, R.C. 2917.11(A)(5). The parties stipulated to damages in

the amount of $7,500 or more. The trial court emphasized that the participants “acted together.”

(Tr. 150.) “This was a group effort, not individuals committing one particular act,

but a group committing several acts together.” Id.

R.C. 2921.34(A)(1) provides that a person under detention shall not

knowingly, or purposely attempt to break the detention. “Detention” is defined as

“confinement in any public or private facility for custody of persons charged with or

convicted of a crime.” R.C. 2921.01(E). The trial court explained that attempting to

leave an area of detention includes the building, the pods and other locked, separate

detention areas within the facility. Of import in the determination is the photograph

of the pod’s back exterior window. The force applied to the window was focused on

a concentrated area that indicates the intent to break the window, meeting the

threshold of probable cause for the charge against Kimbrough, T.A., and E.B.

R.C. 2917.02(B)(2), aggravated rioting, provides that “[no] person,

being an inmate in a detention facility, shall violate division (A)(2) of this section or

section 2917.03 [governing riots] of the Revised Code.” R.C. 2917.02(A)(2) states

that “[n]o person shall participate with four or more others in a course of disorderly

conduct pursuant to R.C. 2917.11 * * * with purpose to commit or facilitate the

commission of any offense of violence.”

The video and testimony support the trial court’s finding of probable

cause for aggravated rioting and Kimbrough’s active involvement with E.B., T.A.,

D.W. along with the others in the pod: The video clearly indicates that there were four or more people engaged in a course of disorderly conduct with the purpose to intimate a public official, employee, into taking or refraining from official action or the purpose to hinder, impede or obstruct the function of government.

All those guards were standing outside. The police officers were standing outside, not wanted to enter because of the behavior [of] these young men.

They were being intimidated by their behavior, flexing, throwing up what the officers believed to be gang signs, although they weren’t specific in being able to name them, but they believed that that’s what they were, but as a way to intimidate them and prevent them or hinder them from being able to engage in their official acts, to hinder, to impede or obstruct it.

(Tr. 155-156.)

Finally, there is probable cause for the vandalism elements under

R.C. 2909.05(B)(2):

No person shall knowingly cause serious physical harm to property that is owned, leased, or controlled by a governmental entity. A governmental entity includes, but is not limited to, the state or a political subdivision of the state, a school district, the board of trustees of a public library or public university, or any other body corporate and politic responsible for governmental activities only in geographical areas smaller than that of the state.

The parties stipulated that the facility damage exceeded $7,500. The housing unit

was closed for repairs for several months and 44 detainees were transferred to other

units.

After a de novo review of the record, we do not find the trial court’s

determination of probable cause that Kimbrough committed the crimes charged

constitutes an abuse of discretion.

C. Conclusion The first assigned error lacks merit.

IV. Amenability

We review a challenge to the juvenile court’s determination on

amenability for an abuse of discretion. State v. Johnson, 2015-Ohio-96, 27 N.E.3d

9, ¶ 36 (8th Dist.), citing State v. Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio-

3725, ¶ 9, citing In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629,

¶ 39.

[A] “juvenile court enjoys wide latitude to retain or relinquish jurisdiction.” State v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181 (1989). And given the discretion afforded the juvenile court by the legislature in determining a juvenile’s amenability to the juvenile justice system, “[i]f there is some rational and factual basis to support the trial court’s decision, we are duty bound to affirm it regardless of our personal views of the evidence.” State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.). We therefore will not reverse a juvenile court’s decision to transfer unless the decision was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

Johnson at ¶ 36.

R.C. 2152.12(B) and Juv.R. 30 provide as to discretionary transfers:

“Under R.C. 2152.12(B), after a complaint has been filed charging a child with offenses that would be a felony if committed by an adult, a juvenile court may transfer jurisdiction to the general division of the common pleas court if it finds that (1) the child was 14 years of age or older at the time of the act; (2) there is probable cause that the child committed the act; and (3) the child is not amenable to rehabilitation within the juvenile justice system and, to ensure the safety of the community, the child should be subject to adult sanctions.”

Johnson at ¶ 33, quoting Jones at ¶ 7.

Juv.R. 30(C) provides: Discretionary transfer. In any proceeding in which transfer of a case for criminal prosecution is permitted, but not required, by statute, and in which probable cause is found at the preliminary hearing, the court shall continue the proceeding for full investigation. The investigation shall include a mental examination of the child by a public or private agency or by a person qualified to make the examination. When the investigation is completed, an amenability hearing shall be held to determine whether to transfer jurisdiction. The criteria for transfer shall be as provided by statute.

A hearing was conducted pursuant to R.C. 2152.12(B) to determine

whether Kimbrough’s amenability to rehabilitation in the juvenile system or for

transfer. Pursuant to R.C. 2152.12(C), the juvenile court ordered an investigation of

Kimbrough’s history, education, mental state, family situation, “and any other factor

bearing on whether the child is amenable to juvenile rehabilitation.” Id.

R.C. 2152.12(D) and (E) list the factors to consider for and against

bindover. The preamble for each subsection explains that a trial court “shall”

consider the listed factors but may also consider “any other relevant factors.” Id.

See also Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 35, citing Jones, 8th Dist. Cuyahoga

No. 99044, 2013-Ohio-3725, ¶ 8.

R.C. 2152.12(D) lists factors that support transfer of jurisdiction of

the case:

(1) The victim of the act charged suffered physical or psychological harm, or serious economic harm, as a result of the alleged act.

(2) The physical or psychological harm suffered by the victim due to the alleged act of the child was exacerbated because of the physical or psychological vulnerability or the age of the victim.

(3) The child’s relationship with the victim facilitated the act charged. (4) The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.

(5) The child had a firearm on or about the child’s person or under the child’s control at the time of the act charged, the act charged is not a violation of section 2923.12 of the Revised Code, and the child, during the commission of the act charged, allegedly used or displayed the firearm, brandished the firearm, or indicated that the child possessed a firearm.

(6) At the time of the act charged, the child was awaiting adjudication or disposition as a delinquent child, was under a community control sanction, or was on parole for a prior delinquent child adjudication or conviction.

(7) The results of any previous juvenile sanctions and programs indicate that rehabilitation of the child will not occur in the juvenile system.

(8) The child is emotionally, physically, or psychologically mature enough for the transfer.

(9) There is not sufficient time to rehabilitate the child within the juvenile system.

R.C. 2152.12(E) lists factors to be considered that support retention

of jurisdiction by the juvenile court.

(1) The victim induced or facilitated the act charged.

(2) The child acted under provocation in allegedly committing the act charged.

(3) The child was not the principal actor in the act charged, or, at the time of the act charged, the child was under the negative influence or coercion of another person.

(4) The child did not cause physical harm to any person or property, or have reasonable cause to believe that harm of that nature would occur, in allegedly committing the act charged.

(5) The child previously has not been adjudicated a delinquent child. (6) The child is not emotionally, physically, or psychologically mature enough for the transfer.

(7) The child has a mental illness or intellectual disability.

(8) There is sufficient time to rehabilitate the child within the juvenile system and the level of security available in the juvenile system provides a reasonable assurance of public safety.

Both statutes allow the juvenile court to consider “any other factors

deemed relevant” to determine amenability. Johnson, 2015-Ohio-96, 27 N.E.3d 9,

¶ 35, citing Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio-3725, ¶ 8.

B. Discussion

The Collinwood and Detention Center cases were consolidated for

the May 4, 2018 amenability hearing. The state called Father Kumse, Det. Warnock,

Jenkins, the group homeowner, and Cuyahoga County Sheriff’s Sergeant Thomas

Bradley. Photographic and video evidence was also admitted.

Father Kumse briefly described the events and testified to the

economic and psychological harm aspects of the amenability factors. In addition to

the fear of being shot, Father Kumse suffered a partial tear to his rotator cuff, has

received medication and therapy and will probably need surgery. He has difficulty

sleeping, no longer walks the dog in the evening and seeks cover when he hears shots

in the neighborhood.

Detective Warnock testified that the M.B.K. gang is a Lakeshore

gang affiliate. Kimbrough, also known as “Lakesho Man Man,” A.W., M.M., and

J.M. are members of M.B.K. A tag is a gang sign used to take credit for a crime. A

car parked in the parish campus parking lot the night of the Collinwood incident contained the tag “Lakesho Man Man” and “M.B.K.” (Tr. 15-16.) One of the walls

on the upper level of T.P.’s house was marked “Lakesho Man Man, and M.B.K.

Main.” (Tr. 16.) Det. Warnock also testified that the juveniles arrested at J.P.’s

house softly repeated “M.B.K.” to each other. (Tr. 17.)

Jenkins recounted the events and testified to the disruptions to

protocol and expenses incurred by the county. Repairs were ongoing at the time of

the hearing but were estimated at $200,000.

Sergeant Bradley identified the contents of a video taken March 16,

2018, of holding cell eight for the trial court. Kimbrough is writing or scratching

graffiti on the wall that Detective Warnock testified said “[f]ree Lakeshore Man

Man” and “[f]*ck T.T., she a snitch.” (Tr. 19.)

Kimbrough argues that he is amenable to rehabilitation in the

juvenile system and the evidence presented in this case does not overcome the

presumption of retention in the juvenile system under. R.C. 2152.12(B)(3).

(B) Except as provided in division (A) of this section, after a complaint has been filed alleging that a child is a delinquent child for committing an act that would be a felony if committed by an adult, the juvenile court at a hearing may transfer the case if the court finds all of the following:

(1) The child was fourteen years of age or older at the time of the act charged.

(2) There is probable cause to believe that the child committed the act charged.

(3) The child is not amenable to care or rehabilitation within the juvenile system, and the safety of the community may require that the child be subject to adult sanctions. In making its decision under this division, the court shall consider whether the applicable factors under division (D) of this section indicating that the case should be transferred outweigh the applicable factors under division (E) of this section indicating that the case should not be transferred. The record shall indicate the specific factors that were applicable and that the court weighed.

More specifically, Kimbrough argues:

The juvenile court cannot fail to consider available treatment options in the juvenile system merely because the youth was involved in the immature acts of destroying and/or defacing Detention Center property.

The juvenile court cannot ignore obvious evidence of immaturity, poor judgment, unformed and/or undeveloped character, and susceptibility to negative influences and peer pressure.

The juvenile court lost focus on the statute’s presumption of retention in the juvenile system and disregarded the professional assessment that numerous factors suggested Kimbrough was amenable to treatment.

The juvenile court never considered the wide array of dispositional options available to it for this young teen.

The juvenile court did not consider how Kimbrough would fare in adult prison.

The record does not support Kimbrough’s assertions.

The trial court determined as to both cases that “the results of

previous juvenile sanctions and programs show rehabilitation will not occur in the

juvenile system.” (Tr. 48.) R.C. 2152.12(D)(7).

In the Collinwood case, the trial court found that Father Kumse

“suffered physical harm” and residual shoulder problems that support transfer

under R.C. 2152.12(D)(1). (Tr. 49.) [Father Kumse] has now further corroborated the issue that his shoulder has caused him some significant problems wherein he’s going to have to have surgery at some point to relieve the problems that he’s having sleeping and just operating the shoulder on a daily basis.

Id. The trial court did not consider Father Kumse’s age to be a factor supporting

transfer under R.C. 2512.12(D)(2) because there was no “connection between” his

“age and his injury.” Id.

Kimbrough did not have a relationship with the victim negating

R.C. 2152.12(D)(3). The trial court determined that Kimbrough’s gang affiliation

supported transfer under R.C. 2152.12(D)(4) based on the evidence presented at the

amenability hearing and T.P.’s testimony during the probable cause hearing.

“There’s testimony from Detective Warnock about the Lakeshore Gang and the

feeder gangs and one of them being M.B.K.” (Tr. 50.)

And then we have video evidence of him defacing the property here with Lakeshore Man Man, Free Lakeshore Man Man, and that’s Terrance Kimbrough actually causing that in the wall.

That’s enough for the Court to find that he’s part of a gang and the tag at the place of the incident shows that it’s connected with that incident, so the Court finds that that particular factor is applicable.

(Tr. 51.)

R.C. 2152.12(D)(5) did not support transfer because Kimbrough did

not possess or control a firearm at the time of the act, and there is no indication in

the statute that complicity is a consideration. Kimbrough was not on parole,

awaiting adjudication, community control or otherwise subject to

R.C. 2152.12(D)(6). The trial court did find that R.C. 2152.12(D)(7) was satisfied. Though

Kimbrough completed probation for the rape charge, the trial court rejected the

claim that Kimbrough’s completion of probation was a success. “[F]or me successful

completion means that you don’t come back to the Court.” (Tr. 52-53.) “Instead we

have 13 subsequent charges against [Kimbrough] after he successfully completed

probation.” (Tr. 53.) These facts, coupled with his behavior in the Detention Center

case, demonstrated to the court that Kimbrough would not be rehabilitated in the

juvenile system.

The trial court held that Kimbrough was emotionally, physically, or

psychologically mature enough for the transfer under R.C. 2152.12(D)(8) and that

there is no indication in the Psychological Evaluation Report (“PER”) that he

suffered from mental health issues or is psychologically, emotionally, or physically

immature. (Tr. 54.)

The court did not find that transfer under R.C. 2152.12(D)(9) is

supported by the record:

The Court does not find, however, that there is insufficient time for rehabilitation in the Juvenile System just based on his age. He has not reached the age of majority. He has at least two years under that status.

Additionally, the Court does have jurisdiction for five years because if the Court decide that he is amenable and he’s found delinquent in [this case] as well as the [Detention Center] case, the Court could construct a disposition that keeps him at the Ohio Department of Youth Services until he’s 21.

(Tr. 54-55.) “So based on the Court’s assessment, there are four out of nine factors

favoring transfer, and that’s for the [Collinwood case].” (Tr. 55.) The trial court then addressed the R.C. 2152.12(E) factors that

support the trial court’s retention of jurisdiction. The evidence did not support that

Kimbrough acted under provocation, induced the act, was the principal offender or

was under the influence of or coerced by another. R.C. 2152.12(E)(1)-(3). The trial

court held that Kimbrough’s acts caused harm pursuant to Father Kumse’s

testimony and Kimbrough had been previously found delinquent so that

R.C. 2152.12(E)(4)-(5) did not support retention. The trial court also determined

that Kimbrough is psychologically, physically, and emotionally mature enough for

transfer and is not mentally ill or mentally challenged. R.C. 2152.12(E)(6)-(7).

The trial court reiterated its finding that sufficient time existed for

Kimbrough to be rehabilitated in the juvenile system. However, the trial court

disagreed that the level of security in the juvenile system provides a reasonable

assurance of public safety pursuant to R.C. 2152.12(E)(8).

Well, I can’t necessarily say that if in fact he participates or there’s probable cause indicating that he’s participated in acts which destroy the very system that we have here to ensure that the public will be safe.

Additionally, he is engaged in assaultive behaviors, destroying property that belongs to the public and, therefore, only half of that factor would be applicable.

And so the Court find there’s one and a half factors against transfer versus four factors favoring transfer.

(Tr. 56-57.)

Finally, the trial court considered the seriousness of the aggravated

robbery offense. I had the opportunity to watch the video where [Father Kumse] is being chased ty two individuals firing guns at him, a defenseless elderly priest whose only responsibility that night was to check on the chicken coop and then he is frightened to the point where he things that he’s about to lose his life all for what?

And Terrance Kimbrough, while he may not have been one of the individuals firing the gun, he still was involved. He still was complicit as much as they were because he was there, and based on the testimony that the Court recalls, they had all been together most of the day.

So it’s not a surprise that this particularly incident was about to transpire. You know, they all jumped back into this car with [Kimbrough] and they all left together.

(Tr. 57-58.)

The trial court concluded that Kimbrough “is not amenable to care

or rehabilitation of the Juvenile Justice System and the * * * safety of the community

requires that he — or may indicate that adult sanctions should be imposed.”

(Tr. 58.) “[T]he Court’s going to grant the State’s motion on this case to relinquish

jurisdiction.” Id.

The final judgment entry states that Kimbrough was 15 years of age

at the time of the incident and that probable cause had been demonstrated for all

counts charged in the Collinwood case.

The court finds after a full investigation, including a mental examination of said child made by a duly qualified person, and after full consideration of the child’s prior juvenile record, family environment, school record, efforts previously made to treat and rehabilitate the child including prior commitments to the Department of Youth Services, the nature and severity of the offense, herein, the age physical and mental condition of the victim as effected by the matter herein, and other matters of evidence, that there are reasonable grounds to believe that the child herein is not amenable to care or rehabilitation within the juvenile system. The court further finds that the safety of the community may require that the child be subject to adult sanctions.

Journal entry No. 0911185834 (May 8, 2018), p. 3.

The entry listed as factors in favor of transfer pursuant to

R.C. 2152.12(D):

The victim suffered physical or psychological harm, or serious economic harm.

The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.

The results of any previous juvenile sanctions and programs indicate that rehabilitation of the child will not occur in the juvenile system.

The child is emotionally, physically, or psychologically mature enough for transfer.

The R.C. 2152.12(E) factors in favor of retaining jurisdiction in the

juvenile court:

The child was not the principal actor in the act charged, or, at the time of the act charged, the child was under the negative influence or coercion of another person.

There is sufficient time to rehabilitate the child within the juvenile system, and the level of security available in the juvenile system provides a reasonable assurance of public safety.

The trial court reviewed each of the factors supporting bindover

under R.C. 2152.12(D). The victim suffered serious economic harm.

R.C. 2152.12(D)(1). The physical and mental harm of the victim did not apply. R.C. 2152.12(D)(2). However, the trial court found that R.C. 2152.12(D)(3) was

supported. “The victim is the” Detention Center. (Tr. 59.) “But for” Kimbrough’s

detention at the center, “he would not have been able to facilitate this act.” (Tr. 59.)

Kimbrough did not act for hire, as part of a gang or brandish a

firearm under R.C. 2152.12(D)(4)-(5). R.C. 2152.12(6) favored transfer because

Kimbrough was awaiting adjudication in the Collinwood case at the time of the

Collinwood incident. R.C. 2152.12(D)(7) also supported transfer. Kimbrough’s

presence before the trial court on the current charges indicated that previous

juvenile sanctions were not successful.

The trial court determined that Kimbrough was emotionally,

physically, and psychologically mature enough for transfer, and that sufficient time

exists for rehabilitation in the juvenile system under R.C. 2152.12(D)(8)-(9). Five of

the nine factors supported transfer.

The R.C. 2152.12(E) analysis of factors against transfer resulted in

the following findings, listed by subsection: (1) the Detention Center did not induce

or facilitate the act; (2) Kimbrough did not act in provocation; (3) Kimbrough was

not the principal actor; (4) Kimbrough did cause harm; (5) Kimbrough was

previously adjudicated delinquent; (6) Kimbrough is emotionally, physically, and

psychologically mature enough for transfer; and (7) Kimbrough is not mentally ill.

Under subsection (8), the trial court again determined that sufficient time exists to

rehabilitate Kimbrough in the juvenile system, but the level of security available

does not support retention. The trial court concluded,

So it’s one and a half factors against transfer. And again, seriousness of the act, the destruction of the Detention Center, that was just outrageous what I witnessed.

And then what caused me even more consternation and anger with [Kimbrough] and finding that * * * he believes that the Juvenile Justice System is a joke is his behavior in that back [holding] cell and his continued inability to be compliant with the rules all the time instead of engaging in physical altercations with individuals downstairs while he’s been confined.

This is a big joke to him, and since that’s the case, we’re going to send him where maybe he doesn’t think it’s a big joke and he’ll take it more seriously.

The Court find this time again he is not amenable to the care and rehabilitation of the Juvenile Justice System.

The Court finds that the safety of the community may require that those sanctions be imposed and, therefore, the Court is going to relinquish its jurisdiction over this matter.

(Tr. 62-63.)

C. Conclusion

In both cases, the trial court considered Kimbrough’s Ohio Youth

Assessment System Report and the parties stipulated to the content of the PER. The

documents included information about Kimbrough’s prior rape conviction in 2014

that resulted in the imposition of a community control sanction (“CCS”). Also,

according to the reports, Kimbrough did not show remorse or accept responsibility

for the rape. He completed CCS and a couple of years later engaged in the

Collinwood and Detention Center incidents. The reports did not indicate that

Kimbrough suffered from medical, mood, or thought disturbances. The record demonstrates that the juvenile court carefully considered

the factors of R.C. 2152.12(D) and (E), and “ultimately determined,” wholly within

the juvenile court’s discretion, “that the factors in favor of transfer outweighed the

factors in favor” of retaining jurisdiction. “We cannot say that the trial court’s

decision constitutes an abuse of discretion.” Johnson, 2015-Ohio-96, 27 N.E.3d 9,

at ¶ 44.

V. Sentence

A. Contrary to Law

Kimbrough argues that his seven-year sentence is contrary to law

and is not supported by the record. He seeks relief under State v. Jones, 2018-Ohio-

498, 105 N.E. 702 (8th Dist.) (en banc) and R.C. 2953.08. In Jones, an en banc

panel of this court “held that appellate review of felony sentences ‘includes the

considerations under R.C. 2929.11 and the findings under 2929.12.’” State v.

Kovatch, 8th Dist. Cuyahoga No. 108453, 2020-Ohio-1025, ¶ 23, quoting Jones at

¶ 9.

However,

[W]e may disturb a felony sentence only if we clearly and convincingly find that either “the record does not support the sentencing court’s findings” or “the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio- 1002, 59 N.E.3d 1231, ¶ 1, 21-23.

State v. Bush, 8th Dist. Cuyahoga No. 106392, 2018-Ohio-4213, ¶ 22.

We are aware that

[a] plea of guilty is a complete admission of guilt. A defendant who enters a plea of guilty waives the right to appeal all nonjurisdictional issues arising at prior stages of the proceedings, although the defendant may contest the constitutionality of the plea itself.

(Citations omitted.) State v. Bogan, 8th Dist. Cuyahoga No. 84468, 2005-Ohio-

3412, ¶ 14. However, we elect to address the issue in the interest of justice under the

unique circumstances of this case.

Kimbrough was convicted in the Collinwood case for: Count 2,

felonious assault, R.C. 2903.11(A)(2), a second-degree felony; Count 3, aggravated

robbery, R.C. 2911.01(A)(1), a first-degree felony; and Count 6, receiving stolen

property, R.C. 2913.51(A), a fourth-degree felony. Two of the counts included one-

year firearm and two weapons forfeiture specifications. The convictions in the

Detention Center case were for: Count 1, escape, R.C. 2921.34(A)(1), a second-

degree felony; Count 4, aggravated riot, R.C. 2917.02(B)(2), a third-degree felony;

and Count 6, vandalism, R.C. 2909.05(B)(2), a fourth-degree felony.

The Collinwood Counts 2 and 3 merged as allied offenses and

sentencing proceeded on Count 3 for six years on the base charge plus the one-year

firearm specification, an 18-month concurrent term on Count 6, five years of

mandatory postrelease control and forfeiture of the handgun. The Detention Center

sentence was for two years on Count 1, 12 months on Count 4 and nine months on

Count 6 run concurrently with each other and with the seven-year sentence in the

Collinwood case.

The sentencing range for aggravated robbery is three to ten years

under R.C. 2929.14(A)(1). Kimbrough’s sentence was for six years with the one-year firearm specification. A firearm specification is a sentencing provision and is not a

separate offense subject to merger. State v. Williams, 8th Dist. Cuyahoga No.

81949, 2003-Ohio-3950, ¶ 19-21.

In Ohio,

[a] sentence is contrary to law if the sentence falls outside the statutory range or if the trial court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12. See, e.g., State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58; State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 8, citing State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10.

State v. Jung, 2018-Ohio-1514, 111 N.E.3d 54, ¶ 14 (8th Dist.).

Kimbrough’s sentence is not contrary to law. In addition, the record

supports the trial court’s full consideration of the principles and purposes of felony

sentencing the applicable factors per R.C. 2929.11 and 2929.12.

We do not find that Kimbrough’s sentence is contrary to law.

B. Disproportionate Sentence

Kimbrough also argues that his sentence was disproportionate to

that of the codefendants and similar offenders. We review this challenge for plain

error because it was not made in the trial court. “Under the plain-error analysis” a

party is required to “‘establish that the outcome of the trial would clearly have been

different but for the trial court’s allegedly improper actions.’” State v. Thompson,

8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, ¶ 17, quoting State v. Waddell, 75

Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Kimbrough argues that he has never been imprisoned and that his

youth should be considered as a mitigating factor. He also argues that he was not a

leader, but a follower, in this case and that the psychological expert determined that

Kimbrough “would be responsive to the care and rehabilitative service available

through the Juvenile Justice System.” PER (Apr. 25, 2018), p. 7-8.

Kimbrough completed his ninth-grade coursework while

incarcerated in the case. His family appeared to demonstrate their support. His

mother and grandmother apologized to Father Kumse and expressed their remorse.

Kimbrough also accepted responsibility and apologized for his actions. He promised

that he would use the period of incarceration to “come back a better person.”

(Tr. 52-53.) Defense counsel shared Kimbrough’s aspirations to attend college and

pursue architecture.

Father Kumse expressly and eloquently accepted Kimbrough’s

apology and prayed that the difficult lesson would make him a better man. The state

said at sentencing that Kimbrough apparently did not initiate the Detention Center

incident but elected to join in. Also, T.P. said Father Kumse was a target of

opportunity to secure money for gasoline.

Kimbrough also argues the sentence is contrary to law because it is

disproportionate to T.P.’s sentence who was not boundover for adult adjudication.

T.P., however, entered into a plea agreement that included testifying against the

others. The record reflects the revolver used in the Collinwood incident belonged to Kimbrough and that Kimbrough was the driver of the vehicle involved. In contrast,

codefendant J.M. was sentenced to nine years for his involvement in the case.

This court has recognized:

The courts have not interpreted the notion of consistency to mean equal punishment for codefendants. State v. Harder, 8th Dist. Cuyahoga No. 98409, 2013-Ohio-580, ¶ 7. Consistency is not synonymous with uniformity. State v. Black, 8th Dist. Cuyahoga No. 100114, 2014-Ohio-2976, ¶ 12. Rather, the consistency requirement is satisfied when a trial court properly considers the statutory sentencing factors and principles. State v. O’Keefe, 10th Dist. Franklin Nos. 08AP-724, 08AP-725, and 08AP-726, 2009-Ohio-1563, ¶ 41. “‘[C]onsistency is achieved by weighing the factors enumerated in R.C. 2929.11 and 2929.12 and applying them to the facts of each particular case.’” State v. Wells, 8th Dist. Cuyahoga No. 100365, 2014- Ohio-3032, ¶ 12, quoting State v. Lababidi, 8th Dist. Cuyahoga No. 100242, 2014-Ohio-2267, ¶ 16. Consistency “‘requires a trial court to weigh the same factors for each defendant, which will ultimately result in an outcome that is rational and predictable.’” State v. Georgakopoulos, 8th Dist. Cuyahoga No. 81934, 2003-Ohio-4341, ¶ 26, quoting State v. Quine, 9th Dist. Summit No. 20968, 2002-Ohio- 6987, ¶ 12.

State v. Cargill, 8th Dist. Cuyahoga No. 103902, 2016-Ohio-5932, ¶ 11.

In addition,

“[c]onsistency accepts divergence within a range of sentences and takes into consideration the trial court’s discretion to weigh statutory factors.” State v. Hyland, 12th Dist. Butler No. CA2005-05-103, 2006- Ohio-339. See also State v. Switzer, 8th Dist. Cuyahoga No. 102175, 2015-Ohio-2954; State v. Armstrong, 2d Dist. Champaign No. 2015- CA-31, 2016-Ohio-5263; State v. Murphy, 10th Dist. Franklin No. 12AP-952, 2013-Ohio-5599, ¶ 14. “Although the offenses may be similar, distinguishing factors may justify dissimilar treatment.” State v. Dawson, 8th Dist. Cuyahoga No. 86417, 2006-Ohio-1083, ¶ 31.

Id. at ¶ 12.

We do not find that Kimbrough’s sentence is disproportionate.

C. Serious Youthful Offender Kimbrough also suggests that the trial court should have exercised

other dispositional options such as blended sentencing for serious youth offenders

“SYO.”

“‘A juvenile charged as a potential serious youthful offender does not face bindover to an adult court; the case remains in the juvenile court. Under R.C. 2152.11(A), a juvenile defendant who commits certain acts is eligible for ‘a more restrictive disposition.’ That ‘more restricted disposition’ is a ‘serious youthful offender’ disposition and includes what is known as a blended sentence — a traditional juvenile disposition coupled with the imposition of a stayed adult sentence. R.C. 2152.13. The adult sentence remains stayed unless the juvenile fails to successfully complete his or her traditional juvenile disposition. R.C. 2152.13(D)(2)(a)(iii). Theoretically, the threat of the imposition of an adult sentence encourages a juvenile’s cooperation in his own rehabilitation, functioning as both carrot and stick.’”

Appellant’s brief, p. 33, quoting State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901

N.E.2d 209, ¶ 18.

SYO designations may only be invoked under certain circumstances.

“Juvenile courts are unique and are tied to the goal of rehabilitation.” Id. at 549.

The primary goal of juvenile sentencing is 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.”

Id., quoting R.C. 2152.01(A). In contrast, “[t]he purposes of felony sentencing, on

the other hand, ‘are to protect the public from future crime by the offender and

others and to punish the offender.’ R.C. 2929.11(A).” Id.

Notwithstanding the purpose and policy of the SYO designation, a

juvenile judge may only impose a blended sentence where initiated against a juvenile pursuant to the statute by indictment (R.C. 2152.13(A)(1)), bill of information,

where the prosecution requests a designation in the original complaint or by filing a

timely notice of intent with the trial court (R.C. 2152.13(B)). An SYO designation

was not available in this case. The prosecution did not seek a designation in this

case.

Moreover,

Discretionary transfer, as its name implies, allows judges the discretion to transfer or bind over to adult court certain juveniles who do not appear to be amenable to care or rehabilitation within the juvenile system or appear to be a threat to public safety.

State v. Hanning, 89 Ohio St.3d 86, 90, 2000-Ohio-436, 728 N.E.2d 1059.

The final assigned error is without merit.

VI. Conclusion

The trial court’s judgment is affirmed. However, we remand this

case to the trial court to enter a nunc pro tunc order consistent with this opinion.

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 of this court directing the common

pleas court 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.

______________________________ ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY; LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION

LARRY A. JONES, SR., J., DISSENTING:

R.C. 2152.01 outlines the overarching principles a juvenile court

should keep in mind when rendering its dispositions. The statute provides in

relevant part as follows:

(A) The overriding purposes for dispositions under this chapter 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. These purposes shall be achieved by a system of graduated sanctions and services. (B) Dispositions under this chapter shall be reasonably calculated to achieve the overriding purposes set forth in this section, commensurate with and not demeaning to the seriousness of the delinquent child’s or the juvenile traffic offender’s conduct and its impact on the victim, and consistent with dispositions for similar acts committed by similar delinquent children and juvenile traffic offenders. The court shall not base the disposition on the race, ethnic background, gender, or religion of the delinquent child or juvenile traffic offender.

(Emphasis added.) R.C. 2152.01(A) and (B).

I strongly disagree that the juvenile court’s bindover in this case

achieved the above-stated purposes and, therefore, I respectfully dissent. Purposes and Principles

In dissenting, I feel that a brief overview of the historical context of

the juvenile justice system and recent research on juvenile offenders in the adult

criminal system is appropriate.

Initially, the juvenile justice system had a bent toward rehabilitating

troubled youth who committed crimes. Briana Morris, A Child is a Child, Except

under Ohio Law: A Discretionary Review of Mandatory Bindovers, 47 Cap. U.L.

Rev. 639, 640 (2019), citing Feld, The Evolution of the Juvenile Court: Race,

Politics, and the Criminalizing of Juvenile Justice (2017); State v. Aalim, 150 Ohio

St.3d 489, 2017-Ohio-2956-83 N.E.3d 883, ¶ 63-64 (O’Connor, C.J., dissenting).

The rehabilitative approach moved through the years to a “scaled-down criminal”

approach, and eventually to a “get tough” approach. Morris at 642-643.3 The get

tough approach was the result of a belief that rehabilitation was failing. Id. at 643-

644. The tougher approach was rooted in the belief that harsher sentences for

youths would help them more than rehabilitation would. Id. In my opinion, the

court took a get tough approach in this case and said as much when it stated the

following at the disposition hearing: “This is a big joke to him, and since that’s the

3 See Morris at 643 for a discussion of the effects of the introduction of crack cocaine in inner cities and the effect it had on crime among African-American youths, all while widening the arrest rates for African-American youth and their counterpart white juvenile offenders. In 1984,“‘[b]lack youths’ Violent Crime Index arrests started at a rate six times that of white youths * * * and by 1994 rose to * * * a 58% increase.’” Id. at 644, quoting Feld at 84. case, we’re gonna send him where maybe he doesn’t think it’s a big joke and he’ll

take it more seriously.”

The goal of the get tough approach was to protect society and to keep

delinquent youths off the streets. Id. But research has shown that any short-term

public protection of incarceration of the youth is offset by the developmental

disruption and increased likelihood of future recidivism. See generally Morris at

666-673. For example, “‘[y]ouths tried as adults reoffend more quickly and more

seriously, thereby negating any short-term crime reduction.’” Morris at 669,

quoting Feld at 122. Simply, the long term effects on youth being sentenced as adults

have lasting, harmful individual and societal effects.

“‘Imprisoning juveniles increases rather than decreases the amount

of subsequent offending.’” Morris at 668, quoting Feld at 118. Further, juvenile

offenders in adult prisons are at an increased risk for victimization due to their

smaller size, physical strength, social skills, and lack of sophistication. Morris at id.,

citing Feld at id. Prison does not foster the appropriate environment for youths to

be able to form an identity, acquire social skills, or make successful transitions to

adulthood. Morris at id., citing Griffin, Office of Juvenile Justice and Delinquency

Prevention, Trying Juveniles as Adults: An Analysis of State and Transfer Laws

and Reporting 4, 26 (2011).

Studies of juvenile crime rates before and after passage of get tough

laws showed that the get tough laws did not have the deterrent effect that many

thought they would. Morris at id., citing Feld at 120. The Center for Disease Control’s Task Force on Community Preventive Services, for example, reviewed

studies that compared outcomes of youths transferred to adult criminal court with

those who remained in the juvenile justice system. Morris at id., citing Feld at 121.

The conclusion: “‘youths tried as adults had higher and faster recidivism rates,

especially for violent crimes, than their delinquent counterparts.’” Morris at id.,

citing Feld at id.

Of course, there are other collateral consequences of sending

juveniles to adult prisons. For instance, “‘teens under eighteen being held in adult

jails are nineteen times more likely to commit suicide than teens in general and

thirty-six times more likely than those held in juvenile facilities.’” Morris at 669,

quoting Laird, States Raising Age for Adult Prosecution Back to 18, ABA Journal

(Feb. 2017).

Until then-President Barack Obama halted the practice in 2016,

juveniles who were sexually assaulted or faced other problems in prison were often

held in solitary confinement. Morris at id., citing Laird at id. “‘Many of the youth

already have existing issues that are only aggravated by the solitary confinement and

many have suffered abuse, neglect, or another form of trauma at some point in their

life.’” Morris at id., quoting Laird at id.

In short, transferring juveniles to the adult prison system “implicates

the punitive aspect of sentencing and deprives the juvenile of access to the rehabilitative hallmarks of the juvenile-justice system.” Aalim, 2017-Ohio-2956, 83

N.E.3d 883, ¶ 68 (O’Connor, C.J., dissenting).4

Discretionary Bindovers

Discretionary bindovers, as occurred here, are for children aged 14

or older when there is probable cause to believe that the child committed the

charged act, the child is not amenable to care or rehabilitation within the juvenile

justice system, and the safety of the community may require that the child be subject

to adult sanctions. However, before the transfer, the judge is allowed to order an

investigation into the child’s social history, education, family situation, and any

other factors bearing on whether the child is amenable to juvenile rehabilitation,

including a mental examination of the child, as well as the factors under

R.C. 2152.12(E).

Although discretionary bindovers require probable cause

determinations, many discretionary bindover decisions turn on whether a minor

was amenable to care or rehabilitation within the juvenile system.

In contrast to a probable-cause determination, a denial of a discretionary-bindover request on the basis of amenability does not necessitate dismissal of any of the charges in the complaint. Rather, the juvenile court retains jurisdiction of the case, the complaint continues

4 See Morris at 670-672 for a discussion of a study conducted on data involving youth from the New York and New Jersey juvenile justice systems; New York’s age of majority for criminal offending is statutorily set at 16, while New Jersey’s age is 18. The conclusion: “juvenile prisons are a better option than adult prisons for young offenders. The overall lasting psychological effects on the juvenile outweigh the fact that adult courts offer a wider array of services and seem marginally more effective at preventing crimes.” Id. at 671-672, citing Fagan & Kupchick, Juvenile Incarceration and the Pains of Imprisonment, 3 Duke F.L. Soc. Change 57-58 (2011). as it was filed, and if appropriate, the child is prosecuted as a serious youthful offender under R.C. 2152.11.

In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 15.

The crux of my disagreement with the majority’s decision relates to

its determination regarding Kimbrough’s amenability to care or rehabilitation

within the juvenile system. There is no question that Father Kumse suffered

physical and emotional harm and the detention center was damaged. The record

also shows that Kimbrough had a juvenile adjudication from when he was 11 years

old, and that the detention center incident occurred while he was awaiting

adjudication for the Collinwood case. But for the reasons discussed below, I would

find the juvenile court’s decision on Kimbrough’s amenability an abuse of discretion.

The amenability evaluation in this case showed several grounds that

I believe weighed heavily in favor of the juvenile court retaining jurisdiction. The

evaluation demonstrated that Kimbrough was doing relatively well in school and

had shown some ability to succeed in school when his attention was focused. At the

time of the Collingwood incident, he was a high school freshman, liked his school,

and was “proud that he [was] close to having enough credits to be placed in the 10th

grade.”

Kimbrough did not have any noted problematic involvement with

alcohol or drugs. He had a supportive family. As mentioned, he had one prior

juvenile adjudication from when he was 11-years old. The adjudication stemmed

from an encounter he had with his stepsister, which he disputed. The record shows that he did “extremely well” on probation, which he completed without incident.

Kimbrough had never had any placement at any Department of Youth Services

(“DYS”) facility.

Further, Kimbrough had a speech impairment and was bullied as a

youth, which led to anger issues. But Kimbrough had been in counseling and had

made strides.

Based on the above mentioned, the expert who completed

Kimbrough’s evaluation identified six bases upon which Kimbrough “would be

responsive to the care and rehabilitative services available through the Juvenile

Justice System.” The evaluation noted:

1. [Kimbrough] had relatively minimal involvement with the Juvenile Justice System. He has one adjudication for delinquency.

2. [Kimbrough] has received only probation program services through the Juvenile Justice System. He has never been committed to or placed in a facility of [DYS].

3. [Kimbrough] did show an adequate adjustment to his probation. He was successfully terminated from his probation.

4. [Kimbrough] has had no history of significant problematic or acting out behaviors in the school setting.

5. [Kimbrough] has had no known history of the problematic use of alcohol or other drugs.

6. At the age of 16 years and 0 months, [Kimbrough] is well below the age of majority.

Neither the transcript of the proceedings, nor the juvenile court’s

entries indicate which portions of the evaluation were considered, accepted, or rejected. Rather, it appears that the juvenile court focused in on two factors in

finding that Kimbrough was not amenable: (1) the nature of the charges, and (2) the

damage done to the detention center.

I am by no means downplaying the crimes that occurred here —

Father Kumse was ambushed as he was collecting eggs from his chicken coop, and

the detention center was significantly damaged by the youths, including Kimbrough,

involved in the incident. But having said that, I think a closer examination of

Kimbrough’s involvement is necessary.

In regard to the robbery and assault of Father Kumse, Kimbrough’s

actions were limited to his mere presence as the driver of the minivan. He did not

leave the van while the other youths assaulted and robbed Father Kumse; he did not

fire any weapons at the priest; and there was no evidence that he knew the co-

delinquents were going to rob and assault Father Kumse.

Further, although he was the driver of the stolen van, the evidence

was scant that he knew or had cause to believe it was stolen. Likewise, as to the

tampering with evidence charge, the evidence showed that Kimbrough took the gun

from his cohort when they returned home and put it on a table. Another cohort took

the gun from the table and placed it in a closet.

In regard to the Detention Center case, the video shows that two

other juveniles, not Kimbrough, were the “ringleaders” of the incident; law

enforcement confirmed this as well. The incident lasted, on and off, for

approximately 90 minutes, and the video shows that the staff at the center did not enter the “pod” where the disturbance occurred. The disturbance ended when

SWAT deputies from the Cuyahoga County Sheriff’s Department arrived, at which

time, the juveniles completely “surrendered.” While the youths certainly damaged

the center’s property, they did not fight with each other, the staff, who, as

mentioned, never entered the area, and none of the youths, including Kimbrough,

left the pod area.

In addition to the facts of this case and the apparent lack of

consideration by the juvenile court of the factors suggesting Kimbrough would have

been amenable, I am also deeply troubled by the juvenile court’s lack of

consideration of the wide array of dispositional options that were available to

Kimbrough. At the time of the amenability hearing, Kimbrough had five years to be

rehabilitated in the juvenile justice system — that, in my opinion, is a significant

period of time. It is especially troubling to me in this case because Kimbrough never

previously had a DYS placement and the opportunity to avail himself of those

services specifically aimed at juvenile offenders. He could have received those

services in the juvenile justice system and the public would have been protected at

the same time.

Because this was a discretionary bindover, the juvenile court was

able to look at Kimbrough as a whole, and not just the crimes and his age as would

be the case in a mandatory bindover. Based on what I have discussed in this dissent,

I believe that [t]he juvenile justice system should look for reform that “aims to enable juveniles to make a successful, prosocial transition to adulthood, while holding them accountable for their wrongdoing, treating them fairly, and protecting society from further offending.”

Morris, 47 Cap. U.L. Rev. at 669, quoting National Research Council, Reforming

Juvenile Justice: A Developmental Approach 89 (2013).

I do not believe the juvenile court looked at Kimbrough as a whole,

with his “care, protection, and mental and physical development” in mind, with the

purpose of protecting the “public interest and safety,” while holding him

“accountable for [his] actions” and restoring and rehabilitating him.

R.C. 2152.01(A). Thus, I believe the juvenile court abused its discretion in

transferring Kimbrough to the adult system. I therefore dissent.