In re R.M. , 2020 Ohio 4446 ( 2020 )


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  •       [Cite as In re R.M., 
    2020-Ohio-4446
    .]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    IN RE: R.M.                                   :   APPEAL NO. C-190420
    TRIAL NO. 19-2753X
    :     O P I N I O N.
    Appeal From: Hamilton County Juvenile Court
    Judgment Appealed From Is: Affirmed
    Date of Judgment Entry on Appeal: September 16, 2020
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
    Assistant Prosecuting Attorney, for Appellee State of Ohio,
    Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler,
    Assistant Public Defender, for Appellant R.M.
    OHIO FIRST DISTRICT COURT OF APPEALS
    CROUSE, Judge.
    {¶1}   Appellant R.M., a minor child, was adjudicated delinquent for carrying
    a concealed weapon, a fourth-degree felony if committed by an adult.          He was
    committed to the Ohio Department of Youth Services (“DYS”) for an indefinite term
    of a minimum of six months and a maximum not to exceed his attainment of the age
    of 21.
    {¶2}   R.M. has appealed, arguing in three assignments of error that: (1) the
    juvenile court violated his right to due process when it committed him to DYS, (2)
    the juvenile court violated his right of allocution by not allowing his defense counsel
    to fully argue in disposition, and (3) the juvenile court abused its discretion in
    committing him to DYS.
    {¶3}   Shortly before oral argument, R.M. filed a motion withdrawing his
    third assignment of error. For the following reasons, we overrule the two remaining
    assignments of error and affirm the judgment of the juvenile court.
    Factual Background
    {¶4}   At a hearing on June 11, 2019, R.M. admitted to the charge of carrying
    a concealed weapon (“CCW”) in violation of R.C. 2923.12. The magistrate accepted
    R.M.’s admission to the charge, put R.M. on electronic monitoring (“EMU”), and set
    the matter for a dispositional hearing in front of the juvenile court judge on July 10,
    2019.
    {¶5}   At the July 10 hearing, the probation department requested a
    continuance because it needed additional time to provide the court with more
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    OHIO FIRST DISTRICT COURT OF APPEALS
    information and options to consider in its disposition. The court denied the request
    and proceeded with the disposition.
    {¶6}    At the hearing, the court cited to the predisposition investigation
    report (“PIR”), which included statements from R.M.’s mother indicating that since
    the June 11 hearing, R.M. had continued to be incorrigible in the home and had
    created a hostile and threatening environment. According to R.M.’s mother, R.M.
    had been throwing “trash on the side of the house * * * sitting outside with his leg in
    the door, smoking Black and Milds, using a knife to carve at my front door. He’s torn
    down all of my curtains, destroying items in the house, trashing my living room and
    being verbally abusive.” Mother also took a screen shot of R.M. “flashing a gun on
    Facebook.” Mother “pleaded” with the court that R.M. be removed from the home.
    {¶7}    The court asked R.M. if he had anything to say. R.M. stated, “I try my
    best for real * * * But I’m not that kind of person. I just get mad over – not little stuff.
    It be stuff I feel like worth getting mad over.”
    {¶8}    The court stated that it was committing R.M. to DYS. It discussed
    R.M.’s previous encounters with the juvenile justice system and services offered to
    him.   It stated that it was “not going to tolerate somebody that goes home, who is
    released on a firearms charge, and then has a * * * knife in the house, is throwing
    trash around and everything else that I just put in the record while they’re in the
    most sensitive aspect of the case.”
    {¶9}    Defense counsel then moved for a continuance, claiming she “was not
    expecting [disposition] to be a part of the hearing today” due to the probation
    department’s request for a continuance. She stated that she was “not aware that the
    court would be in disagreement with [probation’s request for a continuance].”
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    OHIO FIRST DISTRICT COURT OF APPEALS
    Counsel also argued against commitment to DYS. She stated that R.M. had not
    violated EMU, had graduated from the Community Action Youth Build program, and
    was prepared to start the Lawn Life program on July 11, which she described as a
    “positive community program—work program with mentors involved in that as well.”
    The court denied the request for a continuance and ordered R.M. committed to DYS.
    {¶10} R.M. filed a motion to stay and modify disposition, and the court held
    a hearing on the motion on July 16, 2019. At the hearing, defense counsel discussed
    multiple alternatives to DYS and reiterated that R.M. had previously completed the
    Community Action Agency Youth Build program and had graduated with several
    construction certificates. Counsel also stated that R.M. and his mother had some
    conversations “they’ve never had before” in order to improve their communication
    and relationship.
    {¶11} The state argued in support of commitment to DYS and offered several
    photographs and videos into evidence. The court admitted two photographs of R.M.
    holding what appears to be a handgun, and a photograph showing cut marks all over
    the door to his mother’s house, which, according to his mother, were caused by R.M.
    “knifing up the door.” The court also admitted two videos of R.M. insulting and
    cursing at his mother. The state emphasized R.M.’s anger issues and incorrigible
    behavior, and stated, “You don’t know what’s going to happen when a kid with that
    amount of anger is carrying a firearm.”
    {¶12} The court noted that at the July 10 disposition, R.M.’s demeanor was
    “exceptionally different than it is today,” and that he had “almost a smirk on his face”
    at the July 10 hearing. The court described the situation at home as “volcanic,” noted
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    OHIO FIRST DISTRICT COURT OF APPEALS
    that R.M.’s outbursts began the day after his release on EMU, and described R.M.’s
    behavior as “outrageous.” It then overruled R.M.’s motion to modify disposition.
    First Assignment of Error
    {¶13} In his first assignment of error, R.M. contends that the juvenile court
    violated his right to due process when it committed him to DYS at the July 10
    hearing. R.M. argues that the court committed R.M. based on uncharged conduct,
    i.e., his mother’s statements in the PIR, and not based on his underlying
    adjudication.
    {¶14} A court speaks through its entries. State v. Bonnell, 
    140 Ohio St.3d 209
    , 
    2014-Ohio-3177
    , 
    16 N.E.3d 659
    , ¶ 29; State v. Smith, 1st Dist. Hamilton Nos. C-
    080712 and C-090505, 
    2009-Ohio-6932
    , ¶ 38.              In its entry of permanent
    commitment to DYS, the court stated that R.M. was adjudicated delinquent for
    committing an act “which if committed by an adult would constitute a felony of the
    fourth degree, to wit: a violation of R.C. 2923.12.” Thus, it is clear from the record
    that the CCW charge was the basis of R.M.’s commitment.
    {¶15} Furthermore, it was proper for the court to rely on the information in
    the PIR, including the statements from R.M.’s mother about his behavior in
    determining an appropriate disposition in this case.          When determining a
    disposition, “the court must look at not only the delinquent act but also the overall
    conduct and behavior of the juvenile, the juvenile’s history, the remorse shown by
    the juvenile and other societal factors that determine what length of commitment is
    appropriate for rehabilitation.” In re Caldwell, 
    76 Ohio St.3d 156
    , 160, 
    666 N.E.2d 1367
     (1996). At a dispositional hearing, the juvenile court “may admit evidence that
    is material and relevant, including, but not limited to, hearsay, opinion, and
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    OHIO FIRST DISTRICT COURT OF APPEALS
    documentary evidence.”     Juv.R. 34(B)(2).    Thus, the court had wide discretion
    regarding what evidence to consider in its disposition.
    {¶16} R.M.’s conduct between when he admitted to the charge on June 11
    and the dispositional hearing on July 10 was material and relevant to his disposition.
    It demonstrated whether R.M. was likely to repeat the conduct which led to the
    charge, whether he was remorseful, and whether he would comply with court orders
    if his disposition included community control. See, e.g., In re K.M.C., 8th Dist.
    Cuyahoga No. 103449, 
    2016-Ohio-5322
    , ¶ 7 (where the court, in determining
    disposition, considered the offender’s conduct in the detention center during the
    pendency of the case); In re W.P.P., 4th Dist. Washington No. 15CA34, 2016-Ohio-
    345, ¶ 15 (in determining disposition, the court considered the offender’s failure to
    follow detention center rules and his behavior at school).
    {¶17} At the July 10 hearing, defense counsel did not object to the fact that
    the court considered mother’s statements in its decision. Rather, counsel argued
    that she needed a continuance in order to properly prepare for disposition because
    she was not aware of mother’s concerns regarding R.M.’s behavior and needed time
    to investigate. However, R.M. does not assign as error on appeal the court’s denial of
    the motion for a continuance. Also, any error that may have arisen from the denial of
    the continuance was cured because the court heard additional argument from
    defense counsel at the July 16 hearing, after counsel had the opportunity to
    investigate R.M.’s mother’s statements. Notably, R.M. did not deny that any of the
    incidents described by his mother occurred. Rather, he apologized for his conduct
    and pointed to his efforts to improve his behavior.
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    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶18} The court cited to R.M.’s conduct at home as reasons why it committed
    him to DYS, but his conduct at home was not the charge upon which he was
    committed. He was committed for CCW in violation of R.C. 2923.12. The court’s
    consideration of his conduct in the interval between his adjudication and disposition
    was entirely proper. The first assignment of error is overruled.
    Second Assignment of Error
    {¶19} In his second assignment of error, R.M. contends that the juvenile
    court violated his right of allocution by not allowing his counsel to fully argue on his
    behalf. He argues that the court determined disposition before allowing his attorney
    to address the court.
    {¶20} Pursuant to Crim.R. 32(A)(1), at the time of imposing sentence the
    court must afford a defendant and defense counsel allocution, i.e., the opportunity to
    address the court and present information in mitigation. A juvenile defendant has a
    right of allocution before disposition. In re K.S.J., 2d Dist. Montgomery No. 24387,
    
    2011-Ohio-2064
    , ¶ 10; In re R.D.G., 12th Dist. Butler No. CA2010-12-323, 2011-
    Ohio-6018, ¶ 20.
    {¶21} At the July 10 disposition hearing, the court heard from R.M. directly
    and from the state.      Then it stated, “You are being committed to [DYS] for a
    minimum period of six months to the time you’re 21.” The court then heard from
    R.M.’s counsel, who requested a continuance, but also argued against commitment to
    DYS.
    {¶22} “A trial court does not violate a defendant’s rights under Criminal
    Rule 32(A) when it affords the defendant his or her right to allocution after the trial
    court sets forth the terms of its sentence at the sentencing hearing, but before it
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    OHIO FIRST DISTRICT COURT OF APPEALS
    journalizes the sentencing entry.” State v. Robinson, 9th Dist. Summit No. 29192,
    
    2019-Ohio-1740
    , ¶ 18. “A sentence is not finalized until the trial court files its
    sentencing entry and, up until that time, anything it says about what that sentence
    would be is tentative.” Id.; see Smith, 1st Dist. Hamilton Nos. C-080712 and C-
    090505, 
    2009-Ohio-6932
    , at ¶ 38 (a court speaks through its sentencing entries).
    {¶23} The court heard from R.M. and R.M.’s counsel during the disposition
    hearing and before it entered its entry of commitment to DYS.                  The court’s
    announcement of its intention to commit R.M. to DYS before hearing from R.M.’s
    counsel did not violate his right to allocution. The second assignment of error is
    overruled.
    Conclusion
    {¶24} R.M.’s first and second assignments of error are overruled and his
    third assignment of error is withdrawn.         The judgment of the juvenile court is
    affirmed.
    Judgment affirmed.
    MYERS, P.J., and BERGERON, J., concur.
    Please note:
    The court has recorded its own entry on the date of the release of this opinion.
    8
    

Document Info

Docket Number: C-190420

Citation Numbers: 2020 Ohio 4446

Judges: Crouse

Filed Date: 9/16/2020

Precedential Status: Precedential

Modified Date: 4/17/2021