[Cite as State v. Crosby,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : Nos. 107392 and 107551 v. :

DAPRI CROSBY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 6, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-626635-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carson Strang, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Victoria Bader, Assistant State Public Defender, for appellant.

MARY J. BOYLE, P.J.:

Defendant-appellant, Dapri Crosby, appeals his convictions. He

raises one assignment of error for our review: The juvenile court abused its discretion when it determined that 17- year[-]old Dapri 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, Section 10, of the Ohio Constitution.

Finding no merit to his argument, we affirm.

I. Procedural History and Factual Background

In March 2018, Crosby was indicted on nine counts involving four

separate burglaries that took place over a one-month span in May and June 2017.

The charges included four counts of burglary in violation of R.C. 2911.12(A)(2),

felonies of the second degree; two counts of criminal damaging in violation of R.C.

2909.06(A)(1), misdemeanors of the second degree; two counts of theft in violation

of R.C. 2913.02(A)(1), misdemeanors of the first degree; and one count of carrying

a concealed weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree.

One of the criminal damaging counts contained a furthermore clause that Crosby

created a risk of physical harm to the victim. Additionally, one of the burglary counts

carried a one-year firearm specification and two of the charges (burglary and

concealed weapon) contained a weapon-forfeiture specification.

The state requested that Crosby’s case be transferred to adult court.1

Crosby subsequently stipulated to probable cause, and the trial court held a hearing

on the issue of amenability. The following facts were presented at the hearing.

1 Crosby was 17 years old at the time of the offenses, but 18 years old at the time of the amenability hearing. Detective Michael Kitchen testified that he investigated a burglary

that took place on May 21, 2017. Police obtained a fingerprint from the home, which

belonged to Crosby. He stated that another person was involved in the burglary, but

police were not able to identify that person.

Teresa Evans-Guyton testified that her home was burglarized on

May 31, 2017. She was at work when she received an alert on her cell phone from

her doorbell camera, which also sends a video. She said that she could see someone

who she did not know knocking at her door. She saw another young man in the

driveway and then saw a car pull up to her house with “other males.” There were

four males involved. At that point, she called the police. As she was on the phone

with the dispatcher, she saw three men proceed to the back of her house. A few

minutes after that, while she was on the phone with the dispatcher, she got an alarm

on her phone that someone had entered her back door. Evans-Guyton left work

immediately. When she got there, the men were gone. They could be seen on the

video running from her house and getting into the car that had pulled up earlier.

Crosby could be seen in the doorbell video as the second male who rang Evans-

Guyton’s doorbell. He was the only male charged in this burglary.

Evans-Guyton testified that she did not notice anything missing, but

the back door to her house was damaged. Evans-Guyton stated that she was

“terrified” as she “watched the entire thing unfold” and felt “violated.” She said that

she has lived in her neighborhood for a long time and nothing like this had ever

happened before. She said that this incident gave her a “sense of fear and dread” to come home. She has had a lot more anxiety since this incident and is “a lot more

careful.”

Nancy McLaughlin testified that on June 1, 2017, she was at work

when she received a call from her daughter who told her that their home security

company called her to tell her that their security alarm was ringing at their house.

McLaughlin did not work far from home, so she immediately drove home. While

she was driving, she called the police who said they were already at her home.

McLaughlin’s television was missing, but nothing else. McLaughlin explained that

she had damage to two windows and a door. McLaughlin testified that she was

“angry” and “scared.” She said that she had never had anything like that happen to

her before this incident. After this incident, she installed alarms on her windows

too. She stated that she was afraid to leave her house and is still “a little nervous

about it.” Her total loss amounted to approximately $1,300.

Detective Martin Block testified that he investigated the burglary at

McLaughlin’s home. He said that police were able to lift fingerprints from the scene,

and one of them belonged to Crosby. Detective Block further explained that at least

one other male had been charged along with Crosby.

Denise Lang testified that on June 26, 2017, someone broke into her

home. She received a call about the burglary around 12:30 p.m. She left work

immediately. When she arrived home, police were already there and had two

suspects in custody, one of whom was Crosby. Lang’s home was in “total disarray”

and had been “ransacked.” Lang stated that nothing was damaged or taken from her home. She was upset to learn that the suspects had 9 mm guns on them. Lang

stated that her daughter had just left before the suspects entered her home. She said

that the incident “worried” her because her two adult children are “in and out” of the

home all of the time and that she still thinks about it.

Rondell Lewis testified that he is a placement aftercare coordinator

for the Cuyahoga County Juvenile Court. Lewis “oversees OhioGuidestone.” Crosby

was placed at OhioGuidestone on October 24, 2016, which is when Lewis became

his caseworker. Lewis described Crosby’s criminal history as of the time of his

placement, which began in 2013 and included numerous delinquencies for receiving

stolen property, theft, criminal damaging, escape, carrying a concealed weapon,

obstructing official business, probation violation, and assault.

Lewis stated that Crosby was at OhioGuidestone until January 18,

2017, when he went AWOL and did not complete the program. Crosby was

“discharged unsuccessfully,” but he received many services while he was there.

Some of the services included Thinking for a Change, which teaches children to focus

on long-term decision-making, residential treatment, drug education, anger

management, and psychiatric services. Lewis explained that Crosby had only been

diagnosed with conduct disorder, so he did not require a lot of psychiatric services.

Crosby was also enrolled in school while he was there.

Lewis testified that prior to OhioGuidestone, Crosby was enrolled at

Glen Mills School from October 17, 2015, to April 15, 2016. Lewis stated that while Crosby did well at Glen Mills and actually completed the program, Crosby got into

more trouble after he was released.

The court asked Lewis why he thought Crosby had such a difficult

time with services. Lewis stated that Crosby was easily influenced by peers, like in

the current cases where there were multiple codefendants or codelinquents. Lewis

said that Crosby does not “stop and think * * * how his decisions are going to affect

him long-term.” When he gets out of a program, he goes right back to those same

peers who have a negative influence on him despite having a good support system

from his aunt who has custody of him because his parents are deceased.

Crosby had also been “on home detention a number of times,” placed

in “Cleveland Christian Home as a form of shelter care,” and has been referred to

some outpatient counseling programs. Crosby did not do well with the outpatient

counseling programs “due to his lack of accountability.” He also went AWOL from

Cleveland Christian Home and home monitoring when he cut off his ankle monitor.

Lewis stated that Crosby has also spent time in the juvenile detention

center. Lewis was aware that Crosby had been transferred from the detention center

because of behavioral issues, but he did not know exactly what happened. Crosby

had never been sent to the Ohio Department of Youth Services.

Lewis explained that Crosby was a “good kid when you sit down and

you talk to him one-to-one.” He said that Crosby is personable, intelligent, well-

spoken, and respectful. But then when he is around his peers again, he makes bad

choices and goes right back to criminal activity. Lewis stated that it is not very often that a juvenile gets the opportunity to go to more than one residential placement,

but Crosby did, and it still did not help him.

Crosby was scheduled to have a psychological evaluation in February

2018, but he refused. Crosby’s counsel, however, stipulated to an older

psychological evaluation from September 2017. The state argued against

stipulation, stating that when a juvenile refuses to submit to a psychological

evaluation, he or she waives the right to have it admitted under R.C. 2152.12. The

court overruled the state’s objection and admitted the report.

In the report, Dr. Joseph Konieczny stated that Crosby’s “full scale

I.Q. places him in the low average range of intellectual functioning for individuals

his age.” Dr. Konieczny further reported that Crosby “perceive[d] himself to be

experiencing acute psychological turmoil” and “endorses feelings of anxiety,

depression, and agitation.” According to Dr. Konieczny, Crosby also “lacks self-

confidence and self-esteem” and “likely harbors intense feelings of immaturity and

insecurity.” Dr. Konieczny stated that Crosby “is likely to rationalize his behaviors

and is likely to accept little or no responsibility for his own behaviors.” Dr.

Konieczny diagnosed Crosby with “conduct disorder, adolescent onset type, severe”

and “borderline intellectual functioning.” There was no evidence, however, that

Crosby “suffers from any major mental or psychiatric disorder that is affecting his

ability to perceive reality.”

Dr. Konieczny concluded that there was only one factor that indicated

Crosby would be responsive to rehabilitation in the juvenile justice system, which was the fact that he showed “a positive adjustment during his placement at the Glen

Mills School.” Dr. Konieczny stated, however, that Crosby’s criminal history dating

back to 2013, his history of regular marijuana use, the fact that Crosby was on

probation at the time of the current charges, and the fact that he was “beyond the

age of majority,” were all factors that indicated Crosby would not be responsive to

rehabilitative care in the juvenile justice system.

After considering all of the factors before it, the trial court found that

Crosby was not amenable to rehabilitation in the juvenile justice system and bound

Crosby’s case over to the adult criminal court.

In adult court, Crosby pleaded guilty to an amended indictment of

three counts of burglary in violation of R.C. 2911.12(A)(3), third-degree felonies, and

one count of burglary in violation of R.C. 2911.12(A)(2), a second-degree felony, with

a one-year firearm specification.

The common pleas court sentenced Crosby to two years for each of

the felony-three burglary counts and six years for the felony-two burglary, to be

served concurrent to each other and consecutive to one year for the firearm

specification, for a total prison sentence of seven years. The court also informed

Crosby that he would be subject to a mandatory three years of postrelease control

upon his release from prison, and it waived court costs. It is from this judgment that

Crosby now appeals. II. Discretionary Transfer of Jurisdiction

Under Ohio’s juvenile justice system, there are two types of transfer:

mandatory and discretionary. State v. Mays,

,

, ¶ 17

(8th Dist.), citing State v. D.W.,

,

,

.

“Mandatory transfer removes discretion from judges in the transfer decision in certain situations. * * * 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.”

Id. at ¶ 17, quoting D.W.; R.C. 2152.12(A) and (B).

In this case, Crosby was bound over to the adult court pursuant to a

discretionary transfer that is governed by R.C. 2152.12(B), which provides:

Except as provided in division (A) of this section [mandatory transfers], 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. If the first two factors are met, then the juvenile court “must then

continue the proceeding for a full investigation.” In re M.P.,

,

,

, citing R.C. 2152.12(C) and Juv.R. 30(C). R.C.

2152.12(C) requires the juvenile court to

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.

Crosby stipulated to probable cause and, thus, the only issue in this

case is amenability. In making the amenability determination, the juvenile court

must consider whether the applicable factors under R.C. 2152.12(D), indicating that

the case should be transferred, outweigh the applicable factors under R.C.

2152.12(E), indicating that the case should not be transferred. R.C. 2152.12(B)(3);

State v. Jones, 8th Dist. Cuyahoga No. 99044,

. Additionally,

aside from the specifically enumerated factors, the juvenile court is instructed to

consider “any other relevant factors.”

citing R.C. 2152.12(D) and (E). “The

record shall indicate the specific factors that were applicable and that the court

weighed.” R.C. 2152.12(B)(3). Further, when the trial court determines a transfer

is proper, the juvenile court “shall state the reasons for the transfer on the record.”

R.C. 2152.12(I); see also Juv.R. 30(G).

We review a juvenile court’s amenability determination under R.C.

2152.12 pursuant to an abuse of discretion. Jones at ¶ 9, citing In re A.J.S.,

,

,

. Indeed, a “juvenile court enjoys wide latitude to retain or relinquish jurisdiction.” State v. Watson,

,

(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,

,

,

(4th Dist.). To

find that a trial court abused its discretion, “the result must be so palpably and

grossly violative of fact or logic that it evidences not the exercise of will but the

perversity of will, not the exercise of judgment but the defiance of judgment, not the

exercise of reason but instead passion or bias.” Nakoff v. Fairview Gen. Hosp.,

,

(1996).

III. Statutory Factors for Determining Amenability

When determining whether to transfer a child to the trial court for

adult prosecution, R.C. 2152.12(D) requires that a juvenile court consider the

following relevant factors in favor of transfer:

(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.

Additionally, R.C. 2152.12(E) requires that the juvenile court

consider the following relevant factors against a transfer:

(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.

IV. Juvenile Court’s Decision

Regarding the statutory factors for and against transfer, the juvenile

court found that the victims were not physically harmed, although it noted that

burglaries are “devastating and very scary.” The juvenile court also noted that one

victim “clearly stated the psychological difficulty while in her home and continues

to struggle with anxiety” and that “[a]nother victim has estimated $1,300 in

valuables stolen.”

The juvenile court found that the victim did not have physical or

psychological vulnerabilities and that Crosby did not know any of the victims. The

court noted that there was no gang activity.

With respect to a firearm, the juvenile court found that Crosby carried

a firearm in one of the cases but did not brandish or use it.

The juvenile court stated that Crosby had 12 additional cases

stemming back to 2013.

The juvenile court explained that Crosby had two previous

placements rather than being placed in the Ohio Department of Youth Services

(“ODYS”), which it noted was “really unusual.” The court noted that Crosby “has

received two separate placements, and although the youth successfully completed

Glen Mills School, the youth has not benefited from either.” Regarding whether Crosby was “emotionally, physically, or

psychologically mature enough for transfer,” the juvenile court stated: “Yes, you

might have a low average range [of] intellectual functioning, but, you know, if you’d

go to school, you’d get that up. That is a fluid graph that they use and you can

actually be in the average range if you apply yourself.” The court further stated that

“although [Crosby] functions in the low average range of intellectual functioning,

[he] is of a proper age.”

The court also found that there was not sufficient time to rehabilitate

Crosby in the juvenile justice system. It stated:

I don’t believe there’s sufficient time in the Juvenile System because we do only have three years with you and * * * because the [felonies] of the second degree are so severe, that you actually were with other people and had absolutely no fear of breaking into someone else’s home, three years is not sufficient time. I’ve given you five years and you haven’t even made a dent in all the things I’ve tried to do for you.

In its judgment entry, the court added the following reasons:

(1) The testimony indicated that there were several youths for each incident, but that Crosby was the only one charged.

(2) The youth participated in several burglaries and on each occasion, there was property damage.

(3) The youth has been adjudicated on six additional cases.

(4) Pursuant to the psychological evaluation, testimony that the youth suffers from a mental illness.

(5) Although three years may appear sufficient for Crosby to be rehabilitated, Crosby has received services over the previous four years, and none has changed or altered his behavior.

The trial court further stated in its judgment: After full consideration of the youth’s prior juvenile record, family environment, school record, efforts previously made to treat and rehabilitate the youth, including any prior commitments to the Department of Youth Services, the nature and severity of the offenses 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 youth herein is not amenable to * * * rehabilitation within the juvenile system.

V. Analysis

In his sole assignment of error, Crosby contends that the juvenile

court’s decision transferring him to adult court was unreasonable for several

reasons. First, Crosby argues the juvenile court made a single amenability

determination despite the fact that there were three separate cases involving four

incidents.

Crosby points out that R.C. 2152.12(B) states that the juvenile court

“may transfer the case” after making an amenability determination. He therefore

maintains that the court was required to make separate amenability determinations

for each case.

Crosby is correct that the trial court only made one amenability

determination for all of the cases. A number of the factors under R.C. 2152.12(D)

and (E), however, address the juvenile’s social, criminal, and mental histories and

not any individual characteristics of a crime. Therefore, those factors would apply

to all of the cases.

The factors that do address the individual characteristics of each

crime deal mostly with the victim of the crime, whether the juvenile committed the crime alone or with others, and whether the juvenile used a weapon. In these cases,

the facts of each crime were very similar. Crosby broke into a series of homes —

most likely with other individuals — when the victims were not home. Although

each of the victims testified to some degree of psychological harm, no one was

physically harmed. One victim did suffer $1,300 in economic damage, but the fact

that the other victims did not would not mean that the trial court could not transfer

those cases; economic harm is one factor out of many. And although Crosby was

found to have a gun in only one of the cases, the fact that he did not have a gun in

other cases does not mean that the trial court could not transfer them. Again, having

a gun is only one of many factors. Crosby committed some degree of the same crime

in all of the cases — burglary. Burglary is a serious crime with serious consequences.

The fact that the trial court only made one amenability determination based on

Crosby’s three cases was not unreasonable under the facts in this case.

Next, Crosby maintains that the juvenile court failed to find that “the

safety of the community may require that the child be subject to adult sanctions” as

set forth in R.C. 2152.12(B)(3). This statute provides that the juvenile court must

find that “[t]he 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 this case, the trial court did not explicitly find that the safety of the

community may require that the child be subject to adult sanctions. Nonetheless,

we can discern from the record that the trial court considered the safety of the community in making its determination. The trial court explained that burglary is

“devastating and very scary” and that felonies “of the second degree are so severe.”

The court further noted that Crosby was with other people when he committed the

burglaries and “had absolutely no fear of breaking into someone else’s home.” It

also noted that despite four years of efforts of trying to rehabilitate him, he had not

“even made a dent in all the things [it] tried to do for [him].” Thus, it is clear that

the trial court found that the safety of the community required Crosby to be tried in

adult court.

Crosby further argues that the juvenile court’s decision to transfer

Crosby to adult court was unreasonable because it failed to consider other

dispositions available in the juvenile justice system. He cites State v. D.H., 2d Dist.

Montgomery No. 26383,

, where the court held that the juvenile

judge did not articulate why there was not enough time to rehabilitate the child in

the juvenile system. In D.H., the court held that “[t]he juvenile court’s entry under

review contains insufficient factual findings to identify how the court reached its

conclusion that D. H. could not be rehabilitated in the juvenile system.” Id. at ¶ 17.

The court further explained:

The record reveals that D.H.’s age at the time of the amenability hearing would have given him more than 3 years for rehabilitation in the juvenile system, and yet the juvenile court’s findings contain no discussion of what rehabilitation goals can, or cannot, be accomplished in the juvenile system in a 3-year period, or what programs are, or are not, available in the juvenile system to accomplish these goals.

Id. D.H., however, is distinguishable. Unlike Crosby who had an

extensive juvenile delinquency record, D.H. only had one “unofficial” charge of

misdemeanor theft, which had been “handled informally, without resulting in any

juvenile delinquency record.” Id. at ¶ 3. Other than that, D.H. did not have a prior

criminal history nor had he spent any time in the juvenile system.

In this case, the trial court specifically discussed how it had previously

placed Crosby in two residential programs for juveniles where he received many

services. Although Crosby completed one program, he committed more crimes soon

after he was released. The judge then placed him in another program where he was

receiving a number of services, but he left the program before he completed it. Thus,

he was “unsuccessfully discharged.”

In addition to the two residential programs, Crosby had spent time on

a home monitor that he cut off himself. He also went AWOL from a shelter care

placement. Further, he had been transferred from a juvenile detention center

because of behavioral issues. The juvenile court explained that Crosby had received

services for four years and that nothing had “changed or altered his behavior.”

Crosby disagrees with the trial court’s finding, asserting that his

behavior is “largely influenced by peers,” which he claims “does not indicate a lack

of amenability to treatment, but rather a lack of maturity.” Crosby maintains

therefore that it was unreasonable for the trial court to conclude that he was not

amenable to rehabilitation and treatment in a secure setting. We disagree. The

juvenile court has broad discretion when determining whether to transfer a juvenile to adult court. The juvenile court had overseen Crosby’s cases for four years and had

given him many opportunities in the juvenile justice system. In this case, Crosby

had been charged with four second-degree felony burglaries. The trial court had the

discretion to bind him over to adult court after considering and weighing all of the

statutory factors.

Finally, Crosby contends that the juvenile court failed to consider how

he would fare in the adult criminal justice system. R.C. 2152.12, however, permits

discretionary transfer of a juvenile to adult court if the juvenile court determines he

or she is not amenable to being rehabilitated in the juvenile system after considering

a number of factors. These factors require the court to consider whether the juvenile

is “emotionally, physically, or psychologically mature enough for the transfer” and

also whether the juvenile “has a mental illness or intellectual disability.” Thus, R.C.

2152.12(D) and (E) factors ensure that a juvenile court has considered how a juvenile

will fare in the adult system.

While there is evidence in the record that could support the juvenile

court retaining jurisdiction over this case, there is also evidence supporting the

transfer. The court expressly based its decision upon Crosby’s prior conduct in the

juvenile system and failure of the juvenile justice system to rehabilitate him. There

is nothing in the record to support Crosby’s arguments that the juvenile court’s

decision to transfer him was based upon erroneous facts or that it was unreasonable,

arbitrary, or capricious.

Crosby’s sole assignment of error is overruled. Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending is terminated. Case remanded to the trial court for

execution of sentence.

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

of the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and MICHELLE J. SHEEHAN, J., CONCUR