[Cite as State v. Blair,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2016CA00180 LIONELL BLAIR : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2016CR1255

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 17, 2017

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JOHN D. FERRERO VICTORIA BADER STARK COUNTY PROSECUTOR ASSISTANT PUBLIC DEFENDER BY: KRISTINE BEARD 250 East Broad Street, Ste. 1400 110 Central Plaza South, Ste. 510 Columbus, OH 43215 Canton, OH 44702 Stark County, Case No. 2016CA00180 2

Gwin, J.,

{¶1} Appellant Lionell Blair [“Blair”] appeals the June 30, 2016 Judgment Entry

of the Stark County Court of Common Pleas, Juvenile Division, Case No. 2016JCR00453

transferring jurisdiction of his case to the adult court. After the case was transferred to

the Stark County Court of Common Pleas, Blair entered a negotiated guilty plea to one

count of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the second

degree. (Stark County Court of Common Pleas, Case No. 2016CR1255). The trial

court sentenced him to six years in the Department of Corrections and Rehabilitation. In

exchange, the state agreed not to pursue Blair’s Serious Youthful Offender sentence

on a prior juvenile court case.

Facts and Procedural History

{¶2} On March 9, 2016, a complaint was filed in the Stark County Juvenile Court,

alleging that then 17-year-old, Lionell Blair was delinquent of one count of felonious

assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree if committed by

an adult.

{¶3} On March 10, 2016, the state filed a Motion to Relinquish Jurisdiction

asserting that Blair was not amenable to care or rehabilitation in the juvenile system. The

motion was set for both a probable cause hearing and an amenability hearing.

{¶4} At the probable cause hearing, Blair stipulated to his date of birth as January

30, 1999. (T. Apr. 26, 2016 at 3). The State called one witness, Trooper Dora Gonzales.

{¶5} Trooper Gonzales is assigned to investigate crimes that occur at the Indian

River Department of Youth Services Facility (DYS). At the time of the felonious assault,

Blair was serving time for an aggravated robbery with a firearm specification at Indian Stark County, Case No. 2016CA00180 3

River. Trooper Gonzales testified that Blair and another juvenile resident, (Martin) got

into a verbal altercation. Blair claimed Martin was making disparaging remarks about his

dead grandmother. Blair assaulted Martin causing lacerations to his Martin's face and

breaking Martin's jaw. Because of the assault, Martin was treated at Mercy Medical

Center where Martin got stitches in his face and had his broken jaw wired shut. Trooper

Gonzales testified that Blair admitted to assaulting Martin. Blair further admitted that

Martin did not assault Blair at any time. (T. Apr. 26, 2016 at 12).

{¶6} Upon hearing this testimony, the court held that the state had established

probable cause to support that Blair had committed the offense of felonious assault. The

court set the matter for an amenability hearing and ordered a psychological evaluation.

{¶7} On June 28, 2016, the court conducted an amenability hearing. At the

hearing, the state presented the testimony of two witnesses, Juvenile Probation Officer

Lindsay Showalter and Doctor Erin Nicole Smith, and introduced Dr. Smith's

psychological report into evidence. (T. June 28, 2016 at 17-18; 37; State’s Exhibit 3).

{¶8} Showalter was Blair's probation officer from 2012 to 2015. Blair was initially

placed on probation after being found delinquent of having committed a status offense,

unruly. While on probation, Blair received counseling and case management at Phoenix

Rising, his family received coordinated wrap around services, and he was given multiple

trauma screens in an effort to improve his individual therapy. Blair was given graduated

sanctions including being placed on parental house arrest and electronically monitored

house arrest. While on probation, Blair's participation in the various programs was

sporadic. Blair was also in and out of the juvenile attention center on several occasions

for probation violations based on non-compliance with the terms of his probation including Stark County, Case No. 2016CA00180 4

failure to comply with court ordered counseling. (T. June 28, 2016 at 6-7). Showalter

testified that none of the sanctions had any effect upon Blair’s behavior. (Id.).

{¶9} Additionally, while on probation, Blair's school attendance was sporadic.

When he was in school, Blair was insubordinate and disrespectful toward the teaching

staff. Blair was expelled for bringing marijuana onto school grounds. Blair lied and

stole from others. Teachers from the schools attempted to provide intervention but

were unsuccessful due to Blair's attitude and behavior. (June 28, 2016 at 11-12).

{¶10} In December 2014, Blair received court placement at Rogers Children's

Residential Center [“Rogers”]. Rogers is not a secure facility but provides youth with 24-

hour supervision. Rogers is typically a 6-9 month program. At Rogers, Blair was to be

provided with individual trauma based treatment services, anger management and group

counseling. He was also to be coached in improving his social skills and independent

living skills. 17 days after the placement at Rogers Blair went AWOL and was returned

to the juvenile attention center. Rogers agreed to give him another chance in their

placement program. Blair's placement was terminated when he went AWOL from Rogers

for a second time in February 2015. (T. June 28, 2016 at 8).

{¶11} After leaving Rogers without consent, Blair was arrested in Lisbon, Ohio, on

charges of theft and felonious assault. (T. June 28, 2016 at 9). Blair was convicted and

remanded to Stark County for disposition. At disposition, Blair was ordered into the

Residential Treatment Center [“RTC”]. RTC is a locked facility where Blair was to receive

counseling, drug and alcohol education, anger management and life skills training. (Id.

at 9). At RTC Blair's program participation was "rocky.” Blair was involved in multiple

assaults and was disrespectful to staff. (T. June 28, 2016 at 9). Eventually Blair Stark County, Case No. 2016CA00180 5

developed a working relationship with his counselor and earned enough points to have a

home visit. (Id.). During the home visit, Blair went AWOL again and a warrant was issued

for his arrest. While absent without leave, Blair committed another offense of violence-

aggravated robbery with a firearm. (T. June 28, 2016 at 10). Blair was found delinquent

for the new charges and given a blended sentence with the adult commitment stayed and

a DYS commitment imposed. (T. June 28, 2016 at 47; Stark County Court of Common

Pleas, Case No. 2016CR1255, Transcript of Plea and Sentencing Hearing, Aug. 31, 2016

at 14-15).

{¶12} Dr. Erin Nicole Smith, a licensed psychologist employed at Northeast Ohio

Behavioral Health, performed Blair's psychological assessment. The psychological

assessment involved examining dispositional factors, administering a Child Post

Traumatic Disorder Symptom Scale and a youth's mental health exam to determine

whether Blair could be rehabilitated in the juvenile justice system. (T. June 28, 2016

at 17; 23). During the evaluation, Blair was questioned about his family history,

educational history, peer relationships, friendship history, criminal history and mental

health symptoms.

{¶13} When he was young, Blair witnessed domestic violence perpetrated by

his father against his mother. (State’s Exhibit 3 at 3). When his parents separated,

Blair, his mother, and his sisters moved frequently to escape the threat of continued

physical violence at the hands of his father. As a result, Blair reported that he lived in

at least six cities, in two different states throughout his childhood. At age 13, he resumed

visitations with his biological father, who often used drugs and alcohol during their visits

and encouraged Blair to do the same. Stark County, Case No. 2016CA00180 6

{¶14} Blair’s life has been marked by severe trauma. In his young life, he

experienced at least 11 traumatic life events. (State’s Exhibit 3 at 8). Many of Blair’s

family members and friends are gang affiliated or have been incarcerated. Blair has

witnessed his best friend's murder, witnessed another friend be hit by a car, had his own

life threatened on multiple occasions, and has had a bullet removed from his body.

{¶15} Smith diagnosed Blair with Persistent Depressive Disorder and Dependent

Personality Disorder. Further Blair exhibited signs of Post-traumatic Stress Disorder

[“PTSD”]. Smith testified that Post Traumatic Stress Disorder in males tends to correlate

with criminal activity. (T. June 28, 2016 at 19). Smith stated that Post Traumatic Stress

Disorder is difficult to treat and treatment programs may take longer if the disorder has

been present for an extended period of time without treatment.

{¶16} Dr. Smith gave an expert opinion as to whether Blair was amenable to

treatment in the juvenile justice system. Smith stated that compared to the general

population Blair has an increased risk for violence and future criminal activity. In support,

Smith listed several factors from his history including caregiver disruptions and Blair's

disregard for home rules; problematic school achievement; poor coping skills and a need

for approval from other criminally involved peers; difficulty managing anger; difficulty

trusting others; failure to take responsibility for his own actions; and, substance abuse.

(T. June 28, 2016 at 22).

{¶17} Dr. Smith also considered the history of the extensive effort to provide Blair

with intervention and treatment efforts including probation, home based treatment, court

placement at Rogers and RTC and Blair's current DYS placement. Smith recognized that

none of these efforts had any effect on Blair's rehabilitation. Dr. Smith stated, "He's kind Stark County, Case No. 2016CA00180 7

of got an unfortunate negative history of not being amenable to treatment.” Furthermore,

although during the sessions Blair appeared to indicate a willingness to make efforts and

be amenable, treatment was likely to "take a long time"- "many years in a lifetime.” (T.

June 28, 2016 at 22; 24). In conclusion, Dr. Smith stated Blair was not amenable to

rehabilitation in the juvenile justice system.

{¶18} At the hearing, Blair testified on his own behalf. Blair testified about his

initial success in his daily routine at the DYS facility including individual counseling, anger

management and substance abuse counseling. He testified that he refused to join a gang

called "Heartless Felons" because, in Blair's words, anyone who was heartless couldn't

be trusted. (T. June 28, 2016 at 42). The felonious assault that perpetuated the bind-

over proceedings occurred despite his current incarceration and rehabilitative treatment

efforts at DYS.

{¶19} On June 30, 2016, the Juvenile Court issued Findings of Fact and

Conclusions of law. Pertinent to this appeal the Court found that Blair was not amenable

to rehabilitation in the juvenile justice system. In the findings of fact, the court

acknowledged that Blair has had a life full of stressful and traumatic events that has

resulted in an extreme level of post-traumatic stress related symptoms. The court found

that his criminal history includes violence and involvement with weapons. The court took

into account Blair's history, Blair's testimony and the opinion of Dr. Smith that Blair was

not amenable to rehabilitation in the juvenile justice system. In the conclusion of law, the

court addressed the factors set forth in R.C. 2151.12 and Juv.R. 30. The court found that

there were reasonable grounds that Blair is not amenable to care or rehabilitation within Stark County, Case No. 2016CA00180 8

a juvenile facility and that the community safety may require restraint that possibly

extends beyond Blair's majority.

{¶20} The court further held that there were no relevant factors weighing against

the transfer. Specifically the court held that while Blair could receive many beneficial

services and treatment at DYS, "his past history does not demonstrate that he is open

and committed to treatment and services.” Furthermore, Blair, "knowing that he had a

SYO blended sentence, with an adult sentence stayed, could still not manage to refrain

from criminal behavior in DYS.” The court granted the State's Motion to Transfer and

ordered that Blair be transferred to the General Division of the Court of Common Pleas

for prosecution as an adult.

{¶21} Upon transfer, Blair was indicted by the Stark County Grand Jury for one

count of Felonious Assault a felony of the second degree. After indictment in the general

division, Blair pleaded guilty to the offense as charged. The trial court sentenced him to

six years in the Department of Corrections and Rehabilitation ("DRC"). (Stark County

Court of Common Pleas, Case No. 2016CR1255, Transcript of Plea and Sentencing

Hearing, Aug. 31, 2016 at 15). In exchange, the state agreed not to pursue his Serious

Youthful Offender sentence on a prior juvenile court case. (Stark County Court of

Common Pleas, Case No. 2016CR1255, Transcript of Plea and Sentencing Hearing, Aug.

31, 2016 at 14-15).

Assignment of Error

{¶22} Blair presents one assignment of error for our consideration:

{¶23} “I. THE JUVENILE COURT ABUSED ITS DISCRETION AND VIOLATED

17-YEAR-OLD LIONELL BLAIR'S RIGHT TO DUE PROCESS OF LAW WHEN IT Stark County, Case No. 2016CA00180 9

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 1, SECTIONS 10 AND

16, OHIO CONSTITUTION. (6/30/16 JUDGMENT ENTRY, P.9).”

Law and Analysis

{¶24} In his sole assignment of error, Blair contends that the Juvenile Court

abused its discretion when it found that Blair was not amenable to treatment in the juvenile

justice system.

Standard of Review

{¶25} An amenability hearing is a broad assessment of individual circumstances

and is inherently individualized and fact-based. Thus, a juvenile court’s determination

regarding a child’s amenability to rehabilitation in the juvenile system is reviewed by an

appellate court under an abuse-of-discretion standard. In re A.J.S.,

,

,

; In re M.P.,

, 2010-Ohio-

599,

.

Burden of Proof

{¶26} R.C. 2152.12(D) lists the following factors that a juvenile court must

consider in favor of transferring a juvenile to the general division of the common pleas

court:

(1) The victim of the act charged suffered physical or psychological

harm, or serious economic harm, as a result of the alleged act. Stark County, Case No. 2016CA00180 10

(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.

{¶27} The juvenile court must then weigh the factors in R.C. 2152.12(D) against

the factors listed in R.C. 2152.12(E) that weigh against transfer of jurisdiction, including: Stark County, Case No. 2016CA00180 11

(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 is a mentally retarded person.

(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.

{¶28} In addition to considering the factors listed in R.C. 2152.12(D) and (E), the

juvenile court “shall order an investigation into the child’s social history, education, family

situation, and any other factor bearing on whether the child is amenable to juvenile

rehabilitation, including a mental examination of the child by a public or private agency or

a person qualified to make the examination.” R.C. 2152.12(C).

{¶29} What constitutes “reasonable grounds” for relinquishing jurisdiction under

R.C. 2151.26(A)(3) is within the sound discretion after an investigation is made. State v. Stark County, Case No. 2016CA00180 12

Carmichael,

,

(1973). There is no requirement that each

of the five factors in Juv.R. 30(E) is resolved against the child before the court enters a

proper transfer order, so long as the totality of the evidence supports a finding that the

juvenile is not amenable to treatment. State v. Douglas,

,

(1985).

Balancing the Factors

{¶30} R.C. 2152.12 is silent with regard to how a juvenile court should weigh the

factors in R.C. 2152.12(D) and (E). Thus, the juvenile court has the discretion to

determine how much weight should be accorded to any given factor. See State v.

Morgan, 10th Dist. Franklin No. 13AP–620, 2014–Ohio–5661, ¶ 37; Accord, State v.

Marshall, 1st Dist. Hamilton No. C-150383,

, ¶15. “As long as the court

considers the appropriate statutory factors and there is some rational basis in the record

to support the court’s findings when applying those factors, [this court] cannot conclude

that the trial court abused its discretion in deciding whether to transfer jurisdiction.” State

v. West,

, 2006–Ohio–3518,

(4th Dist.); State

v. Marshall, ¶15.

{¶31} In Kent v. United States,

,

,

(1966), the United States Supreme Court held that it is incumbent upon the Juvenile Court

to accompany its waiver order with a statement of the reasons therefor. The court held

that the statement need not be formal or necessarily include findings of fact. The Court

held the statement should be sufficient to demonstrate a full investigation had been made,

the Court carefully considered the matter, and the order is specific enough to permit

meaningful review. Stark County, Case No. 2016CA00180 13

{¶32} In State v. Douglas,

, 36,

(1985) the Ohio

Supreme court held in a per curiam opinion under a prior version of the transfer statute

and juvenile rule regarding transfer no written findings regarding the findings were

required. See State v. Erwin, 10th Dist. Franklin No. 09AP-918,

, ¶14. In

a footnote, the Supreme Court in Douglas noted that the juvenile court sufficiently stated

its reasons for appellee’s transfer as required by Juv.R. 30(G) although the juvenile

court’s journal entry relinquishing jurisdiction was couched in the conclusory language of

R.C. 2151.26. [Cf. State v. Bonnell,

, 2014–Ohio–3177,

, ¶29, “[A]s long as the reviewing court can discern that the trial court engaged in the

correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.”].

{¶33} We are satisfied that the juvenile court’s transfer order meets the

requirements of R.C. 2152.12 and the constitutional mandates of due process.

{¶34} Blair contends the juvenile court abused its discretion in finding him not

amenable to rehabilitation as a juvenile. Specifically, Blair argues the trial court abused

its discretion because 1). The juvenile court did not consider how Blair had progressed in

DYS since the incident or how he would fare with consistent long-term, intensive

treatment at DYS; 2). Although not a specifically enumerated factor, the juvenile court did

not consider how trauma affected Blair and mitigated against transfer; 3). The juvenile

court did not consider what rehabilitative efforts could occur with the time remaining in the

juvenile system and 4).The juvenile court did not consider how Lionell would fare in adult

prison. [Appellant’s Brief at 7]. Stark County, Case No. 2016CA00180 14

{¶35} In the case at bar, there is competent credible evidence to establish, that

the victim of the assault by Blair did not “induce or facilitate the act charged.” R.C.

2152.12(E)(1); that Blair was the principal actor in committing the assault. R.C.

2152.12(E)(3); Blair did cause serious physical harm in committing the assault. R.C.

2152.12(E)(4); and Blair has previously been adjudicated a delinquent child. R.C.

2152.12(E)(5). In her report, Dr. Smith opined, “Lionell appears mentally and emotionally

mature enough for a transfer of jurisdiction.” State’s Exhibit 3 at 12, ¶5. R.C.

2152.12(E)(6).

{¶36} At the time of the assault, Blair was under sanctions for a prior adjudication

of delinquency and, specifically, had a suspended adult commitment under a blended

sentence for aggravated robbery with a firearm specification. R.C.2152.12(D)(6). Blair

did cause serious physical harm to Martin. R.C. 2152.12(D)(1); and Martin could not

avoid the attack because he was also committed to DYS. R.C. 2152.12(D)(3). Blair’s

probation officer testified that none of the previous juvenile court sanctions had any

effect upon Blair’s behavior. R.C. 2152.12(D)(7).

{¶37} During the amenability hearing, the following exchange occurred

between the Court and Dr. Smith,

Q. Just a couple of questions for you. I think we’ve already

touched on it but just to recap um since you’re not able to tell us how

long rehabilitation will take for Lionell you can’t say that he won’t be

rehabilitated in that four year period right?

A. I can say that it would…would be difficult. Yeah. Stark County, Case No. 2016CA00180 15

Q. Um but if he were able to take advantage of that four years

of rehabilitation it would be…would it be fair to say that it would be more

likely that he would better assimilate into society after being released?

A. I…I don’t know the answer to that. I don’t know that I can

speculate. Um I think if he received the necessary treatment within that

amount of time then it would be possible that he could have the self-

confidence but I can’t say for sure that…that that would happen.

T. June 28, 2016 at 35. In her report, Dr. Smith specifically found, “7. There is

not sufficient time to rehabilitate Lionell within the Juvenile Justice System.”

State’s Exhibit 3, at 13.

{¶38} Clearly, the trial court did weigh the factors for and against transfer and

considered whether or not Blair could be rehabilitated within the juvenile court system.

Although the trial court did not directly address the factors that weighed against transfer

in its Judgment Entry, the trial court did hear Dr. Smith’s testimony and reviewed Dr.

Smith’s report. Thus, the trial court did not ignore the factors under R.C. 2152.12 in

making its amenability determination. See, State v. Marshall,

.

{¶39} In a case cited by Blair, State v. D.H., 2d Dist. No. 26383,

, the Second District implied that a court considering relinquishing jurisdiction should

have performed a detailed analysis of the programs available to rehabilitate the child in

the juvenile system before concluding that the child could not be rehabilitated in the

juvenile system. While we agree that a court needs to genuinely consider the factors,

and the record needs to reflect that fact consistent with R.C. 2152.12(B)(3), other courts

have never gone as far as the Second District in directing the juvenile court’s analysis. Stark County, Case No. 2016CA00180 16

See, State v. Reeder, 10th Dist. Nos. 15AP-203; 15AP-218,

,

, ¶18; State v. Marshall,

; State v. Rice, 12th Dist. Butler No.

CA2016-01-005, ¶18, n. 2.

{¶40} “As long as the court considers the appropriate statutory factors and there

is some rational basis in the record to support the court’s findings when applying those

factors, we cannot conclude that the [juvenile] court abused its discretion in deciding

whether to transfer jurisdiction.” State v. West,

,

,

(4th Dist.), ¶ 10, citing R.C. 2152.12(B); State v. Watson,

,

(1989); State v. Douglas,

, 36–37,

(1985); and State v. Hopfer,

, 535–536,

(2nd Dist. 1996).

In this broad assessment, any one particular circumstance may carry

more weight than other circumstances. For example, the seriousness of

the alleged act may speak not only to a child’s mental health, but also to her

threat to the community and to her need for rehabilitation beyond her

twenty-first birthday. See [State v. Watson,

,

(1989)]. In sum, any evidence that reasonably supports

the juvenile court’s decision to relinquish jurisdiction will suffice to sustain

that court’s judgment.

State v. Hopfer,

,

. Accord, State v. Anderson,

5th Dist. Delaware No. 14 CAA 05 0034,

, ¶ 48.

{¶41} While there is evidence in the record that supports the juvenile court

retaining jurisdiction over this case, there was also evidence supporting the transfer. The Stark County, Case No. 2016CA00180 17

court expressly based its decision upon Blair’s prior conduct and failure of the juvenile

justice system to rehabilitate him. Nothing in the record supports Blair’s argument that

the juvenile court’s decision was based on erroneous facts, that the trial court failed to

weigh the appropriate factors or that the trial court’s decision was unreasonable, arbitrary,

or capricious.

{¶42} We find the trial court properly considered the factors set forth in R.C.

2152.12, along with all other relevant factors and circumstances. While Blair may

disagree with the weight given to these factors by the trial judge, the trial court did not

abuse its discretion, and therefore, we have no basis for concluding that the decision to

transfer Blair to adult court violated Blair’s right to due process of law.

{¶43} Accordingly, Blair’s sole assignment of error is overruled. Stark County, Case No. 2016CA00180 18

{¶44} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, J.,

Delaney, P.J., and

Wise, Earle, J., concur