[Cite as In re O.M., 2020-Ohio-5433.]

 COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

IN RE O.M. : No. 109381 

 

 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: November 25, 2020 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case No. DL-18-110731 

 

Appearances: 

Fernando Mack and Eric L. Foster, for appellant. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, Thomas Rovito and Anthony T. Miranda, 

Assistant Prosecuting Attorneys, for appellee. 

PATRICIA ANN BLACKMON, P.J.: 

O.M. appeals from the juvenile court’s imposition of the adult portion 

of his serious youthful offender dispositional sentence and assigns the following 

error for our review: 

I. The trial court erred by making findings under R.C. 2151.14(E) 

which were not clearly and convincingly supported by the evidence. 
Having reviewed the record and pertinent law, we reverse the trial 

court’s judgment, because there is not clear and convincing evidence in the record 

that O.M. is unlikely to be rehabilitated during his remaining period of juvenile 

detention. The apposite facts follow. 

On October 25, 2018, the juvenile court adjudicated O.M. delinquent 

for aggravated robbery and other associated offenses, along with firearm and serious 

youthful offender specifications. O.M., whose date of birth is June 25, 2001, was 17 

years old at the time of the adjudication. The court sentenced O.M. to three years at 

the Ohio Department of Youth Services (“ODYS”) and stayed an eight-year prison 

sentence as part of the serious youthful offender specification. 

While at ODYS, O.M. was involved in over 100 behavioral incidents 

including being found delinquent of two felonies. ODYS sent a request to the 

prosecutor’s office to invoke the adult portion of O.M.’s sentence. In September 

2019, the Cuyahoga County prosecutor’s office filed a motion to invoke the adult 

portion of O.M.’s dispositional sentence. The juvenile court held a hearing, and on 

December 2, 2019, invoked the eight-year prison term, finding clear and convincing 

evidence that O.M. was “unlikely to be rehabilitated during the remaining period of 

juvenile jurisdiction.” 

It is from this order that O.M. appeals. 

Serious Youthful Offender Specification 

The overriding purposes of detention in a juvenile facility are “to 

provide for the care, protection, and mental and physical development of children 
subject to this chapter, protect the public interest and safety, and hold the offender 

accountable for the offender’s actions, restore the victim, and rehabilitate the 

offender.” R.C. 2152.01(A). However, adult punishment may be reserved for serious 

juvenile offenders who are at least 14 years old, engage in further serious 

misconduct, and are not amenable to rehabilitation in the juvenile system. 

The Ohio Supreme Court discussed the statutory scheme governing 

serious youthful offender specifications in State v. D.H., 120 Ohio St.3d 540, 2009-

Ohio-9, 901 N.E.2d 209, ¶ 18: 

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. 

R.C. 2152.14(A) allows the state to file a motion to invoke the adult 

portion of a juvenile sentence if: 

there is reasonable cause to believe that either of the following 

misconduct has occurred * * * after the person reached fourteen years 

of age: 

(a) The person committed an act that is a violation of the rules of the 

institution and that could be charged as any felony or as a first degree 

misdemeanor offense of violence if committed by an adult. 

(b) The person has engaged in conduct that creates a substantial risk to 

the safety or security of the institution, the community, or the victim. 
Pursuant to R.C. 2152.14(E)(1), a juvenile court must make all of the 

following findings by clear and convincing evidence prior to imposing the adult 

portion of a serious youthful offender’s dispositional sentence: 

(a) The person is serving the juvenile portion of a serious youthful 

offender dispositional sentence. 

(b) The person is at least fourteen years of age and has been admitted 

to a department of youth services facility, or criminal charges are 

pending against the person. 

(c) The person engaged in the conduct or acts charged under * * * this 

section, and the person’s conduct demonstrates that the person is 

unlikely to be rehabilitated during the remaining period of juvenile 

jurisdiction. 

This court has held that a “juvenile must engage in separate conduct 

detrimental to his own rehabilitation in the juvenile system before he may be 

committed to an adult facility.” In re M.B., 8th Dist. Cuyahoga No. 106434, 2018-

Ohio-4334, ¶ 37. 

It is undisputed that O.M. was at least 14 years old when he 

committed the acts in question, and he was serving the juvenile portion of a serious 

youthful offender dispositional sentence at ODYS. Furthermore, at the hearing on 

the state’s motion, O.M.’s attorney conceded that O.M. engaged in conduct that 

satisfies R.C. 2152.14(A)(2)(a) and (b). However, the parties dispute whether O.M.’s 

conduct presented clear and convincing evidence that he was unlikely to be 

rehabilitated. 

The clear-and-convincing-evidence standard allowed by R.C. 

2152.14(E)(1) is less rigorous [than the beyond-a-reasonable-doubt 

standard], though stronger than a mere preponderance-of-theevidence standard. We have stated that clear and convincing evidence 
is that “which will produce in the mind of the trier of facts a firm belief 

or conviction as to the facts sought to be established.” Cross v. Ledford, 

161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the 

syllabus. The standard requires the judge to have a firm belief or 

conviction about the facts adduced. 

In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 20. 

Hearing Testimony 

The following testimony was presented at the hearing on the motion 

to invoke the adult portion of O.M.’s dispositional sentence: 

James Darnell testified that he is the Superintendent of Indian River 

Correctional Facility (“Indian River”), the ODYS facility in which O.M. was placed 

on November 7, 2018. According to Darnell, a Youth Behavioral Incident Report 

(“YBIR”) is a “written reprimand that a youth would receive when they violate a 

rule.” At the time the prosecutor filed the motion to invoke the adult portion of his 

sentence, O.M. had been at Indian River for approximately ten months and had 

received 107 YBIRs. O.M. received additional YBIRs between when the motion was 

filed and the hearing was held, putting his total at over 120. 

Darnell testified that O.M.’s YBIRs summarized “incidents that are 

assault, fights, gang-related activity, assaults on staff, [and] charges that occurred as 

a result of those assaults on staff.” Darnell noted that O.M. was involved in two 

incidents of violence the weekend prior to the hearing and one incident of violence 

the day before the hearing. Darnell testified that O.M.’s conduct has been “a 

significant security risk and safety risk to the staff and the youth as well as disruptive 
of the facility operations. * * * When those things happen, it in effect stops the 

functioning of programming.” 

Darnell further testified that during O.M.’s stay at Indian River, O.M. 

completed various individual and group-therapy sessions as part of his treatment. 

“He has completed substance abuse education, prep groups, anger, aggression and 

violence. The [cognitive behavioral therapy] books one and two. I believe he’s 

currently in * * * anger * * * regression therapy group.” O.M. earned his GED while 

at Indian River and recently had been working in the cafeteria. Darnell testified that 

O.M. “was not disrespectful to me or inappropriate towards me” during their 

interactions at Indian River. 

Darnell testified that there are four behavior levels that juveniles may 

be placed in, with a Level One designation for the worst behavior and a Level Four 

designation for the best behavior. Juveniles may move up and down the levels 

depending on their conduct. During O.M.’s stay at Indian River, he was a Level One, 

Level Two, and Level Three. At the time of the hearing, and because of the three 

recent incidents, O.M. was on “Intervention Hearing” status, which happens when 

a juvenile commits “a high level rule infraction” or “an act of violence.” According 

to Darnell, “for two weeks you’re on a specific designated plan that’s restricted. He 

would go to an intervention hearing and sanctions could be imposed at that time 

from that.” 

Darnell also testified about the “gang issues” at Indian River, 

including the known gang Heartless Felons. 
So we have a designated Gang Intervention Specialist * * * and he meets 

with every youth upon their arrival and discusses * * * the gang issues 

and the importance of making good decisions and he reviews their 

history in the community. If there’s any gang issues there he 

documents that also. He tracks and documents any gang activity 

throughout the building. 

Shawn Anders testified that he is the Security Threat Group 

Coordinator at Indian River. His primary duty is to “track and monitor the gang 

activity inside the facility.” Of the approximately 150 juveniles detained at Indian 

River, about 100 identify as gang members. “A little bit around 50, high 40s, low 

50s that are considered active. The other 40 to 50 are passive participants.” 

Anders testified that “[c]urrently, [O.M.] is identified as a member of 

the Heartless Felons.” The Indian River staff first noticed O.M. involved in gang 

activity within a month of his arrival in November 2018. There was no indication 

that O.M. had involvement with the Heartless Felons prior to his time at Indian 

River. 

According to Anders, coercion and threats are “a big part” of initiating 

someone into gang activity. For example, a higher ranking gang member may say 

to a lower ranking member, “you better go physically attack this individual 

otherwise, this may happen to you * * *.” Asked if it would have been 

“reasonable * * * to believe that [O.M.] received instruction to strike that individual 

from a Heartless Felon,” Anders answered, “It could be. Yes, sir. * * * The attack 

that he used was an unprovoked assault from behind, that is a tactic that the 
Heartless Felons consistently use as a means of performing their will on other nonHeartless Felon members.” 

Prior to his most recent behavioral incidents, O.M. was a “passive” 

member of the Heartless Felons, which means no “significant substantiated 

Heartless Felon act[s]” within 90 days. O.M. was passive from approximately 

August 2019, until the incidents that occurred just prior to the hearing on December 

2, 2019. Anders testified that O.M. “had a desire to distance himself” from the gang. 

Sometime in the “early summer, late spring” of 2019, he was moved to a unit “where 

a lot of kids who had been leaving the gang stuff alone” were housed. He remained 

there until the week before the hearing. 

Anders testified that during O.M.’s time at Indian River, O.M. was 

involved in 15 “Signal 5s,” which are when all available staff must respond to an 

incident, and at least two “Signal 88s,” which are elevated responses to an 

immediate emergency when all staff members must respond to an incident. 

According to Anders, Indian River has “over 360 cameras in our facility that capture 

activity [and] that record the daily events 24/7/365.” 

Anders testified about a November 21, 2018 incident in which O.M. 

assaulted another juvenile. Anders described what was recorded on surveillance 

video: The victim “is pushing the yellow laundry cart, doing his job duties on the 

unit and while doing so he was attacked by [O.M.] in an unprovoked assault which 

he strikes him in the jaw.” According to Anders, O.M. punched this youth twice “very 
hard,” and the youth “was unable to get up under his own power and the staff 

member actually had to pick him up because his legs were wobbly.” 

On December 26, 2018, O.M. was involved in another incident that 

was recorded on a video camera located in the dayroom. O.M. “got up out of his seat 

from the second row, walked over to the table in which [another youth] was sitting 

at, they’re playing cards and then unprovoked attack from behind or from the side, 

started punching him in the head.” 

Dena Freeman testified that she is the Social Worker Supervisor at 

Indian River, and she oversees the juveniles’ therapy programs. O.M. completed the 

“substance abuse education, phase one and phase two. He is currently in anger 

aggression and violence groups, he is also in anger regression therapy groups.” The 

goal of the anger groups is “trying to teach him coping skills in how not to allow his 

anger to cause him to hurt other people.” O.M. has participated in 15.2 hours of 

anger and violence group therapy, an additional 15 hours of individual anger therapy 

“for when he has assaulted people in the past,” and an additional three hours of 

anger regression therapy. 

According to Freeman, O.M. could have been involved in anger 

aggression therapy for the remaining two years of his juvenile detention, because it 

is an ongoing program. As for the anger regression therapy, O.M. completed 3 out 

of a possible 18 sessions. Freeman testified that in her individual dealings with 

O.M., he was always respectful to her and told her he “wanted to do good and be a 

success story.” 
Ronald Foster testified that he is a Unit Manager at Indian River. 

According to Foster, on March 5, 2019, O.M. received a YBIT for “going in an 

unauthorized area and * * * beginning to tear up the state property,” then assaulting 

a staff member with a keyboard. Additionally, O.M. “started displaying some 

behaviors that he was going to harm himself and I assisted with removing I believe 

a sheet or something that he had tied around his neck.” O.M. “was facing me directly 

and he spit in my face.” Foster left his radio in O.M.’s room, and O.M. “began to 

broadcast over the system and make derogatory remarks.” 

According to Foster, on January 27, 2019, O.M. “was instructed to 

stop beating a gang cadence on his chair and his response is that he was a felon, 

which is in reference to the Heartless Felons, three years strong and continued to do 

the cadence.” On January 28, 2019, O.M. and another juvenile “made threats to be 

disruptive and damage the unit if they were to receive a YBIR.” On January 29, 

2019, O.M. “was physically restrained after he began to what they call flip the unit 

where basically he was causing property damage by throwing chairs and having to 

be placed in handcuffs. It also says that he lowered his shoulder and rammed into a 

staff person.” 

Foster further testified that O.M. “showed spurts of compliance, but 

in my opinion, it was important for him to try to fit in with one of our prominent 

[gang] groups, the Heartless Felons. So that caused for him to receive quite a bit of 

YBIRs and have noncompliant behavior. * * * [T]here was a lot of disrespect and 

disruptive behavior and acts of violence.” At one point, Foster told O.M. that he “had 
matured and come a long way since when he first arrived.” A period of “maybe at 

least two or three weeks” would pass without O.M. receiving a YBIR, and Foster 

testified that this was “a good thing.” O.M. had “been moved to our least restrictive 

type of units but then would lose that based off of being noncompliant.” 

Jeffrey Leist testified that he is a General Activities Therapist at 

Indian River. On March 5, 2019, O.M. was involved in a disruption with another 

juvenile. O.M. ripped a keyboard out of the staff podium, and when staff tried to 

intervene, O.M. hit Leist in the face with the keyboard. This incident was caught on 

video. Nine to ten staff members responded to the incident. Leist had “bruising 

along [his] jawline and it was sore for probably about two weeks afterward.” Leist 

also testified about an incident that occurred the weekend before the hearing, which 

was recorded on video. O.M. and “another youth began fighting and it escalated to 

fighting with pool sticks and I was struck in the face by [O.M.]. And also in the 

course of the fight the youth began spitting on each other and he spit on me as well.” 

On cross-examination, Leist testified that this other youth initiated 

the physical altercation with O.M. Leist further testified that it appeared that O.M. 

was trying to strike the other youth with the pool stick when Leist got involved. This 

resulted in O.M. striking Leist with the pool stick. 

Juvenile Court’s Ruling 

After the hearing, the juvenile court issued a journal entry finding that 

“the allegations of the motion have been proven by clear and convincing evidence.” 

As stated earlier in this opinion, the only factor regarding the serious youthful 
offender specification that is disputed in this case is whether O.M. is unlikely to be 

rehabilitated during his period of juvenile detention. The juvenile court did not 

make any specific factual findings regarding this disputed factor. 

Analysis 

On appeal, O.M. argues that he was “coerced” or “forced” into gang 

activity while at ODYS and that he “had undergone so little of the individualized 

behavioral therapy offered by the facility.” Our review of the evidence focuses on 

the disputed R.C. 2152.14(E)(1) factor of whether O.M. “is unlikely to be 

rehabilitated during the remaining period of juvenile jurisdiction.” 

At the time of the hearing, O.M. had served just over one year of his 

three-year detention at ODYS. The state presented evidence of four behavioral 

incidents committed by O.M. as clear and convincing evidence that O.M. was 

unlikely to be rehabilitated. Evidence was also presented that O.M. became a 

member of the Heartless Felons while at Indian River. According to O.M., he was 

compelled by gang members to commit the incidents at issue, arguing that “[f]or 

each incident, testimony was elicited showing that O.M. was never solely at fault.” 

Additionally, evidence presented at the hearing shows that O.M. 

completed just over 33 hours of group and individual therapy related to anger and 

aggression issues, in addition to completing substance abuse education programs. 

O.M. received his GED while at Indian River and was employed in the cafeteria. 

We are aware that O.M. received a significant number of YBIRs 

during his time at Indian River. However, during oral arguments, counsel for O.M. 
noted that juveniles may receive YBIRs for a wide range of behavior, including noncompliance, rule infractions, and aggressive conduct. 

Public policy considerations weigh in favor of keeping juvenile 

offenders in the juvenile system, rather than the adult prison system. For example, 

[s]ubstantial scientific research during the last two decades has 

discovered significant physiological differences between child and 

adult brains. Citing this evidence, the United States Supreme Court 

recognized that in comparison to adults, “juveniles have a ‘“lack of 

maturity and an underdeveloped sense of responsibility.’’’’’ Graham v. 

Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), 

quoting Roper v. Simmons, 543 U.S. 551, 569-570, 125 S.Ct. 1183, 161 

L.Ed.2d 1 (2005), quoting Johnson v. Texas, 509 U.S. 350, 367, 113 

S.Ct. 2658, 125 L.Ed.2d 290 (1993). Juveniles ‘‘‘are more vulnerable or 

susceptible to negative influences and outside pressures, including peer 

pressure’; and their characters are ‘not as well formed.’’’ Id., quoting 

Roper at 569-570. Amici curiae Juvenile Law Center and National 

Juvenile Defender Center submitted significant documentation of 

similar findings. In one article cited by the centers, Laurence Steinberg, 

a doctor of psychology with a focus on adolescent development, noted 

that “[a]dolescence is not just a time of tremendous change in the 

brain’s structure. It is also a time of important changes in how the brain 

works.” Steinberg, Should the Science of Adolescent Brain 

Development Inform Public Policy?, 50 Ct.Rev. 70 (2014). Steinberg 

made the following observations about structural changes that the 

brain undergoes during adolescence: 

First, over the course of adolescence and into early adulthood, there is 

a strengthening of activity in brain systems involving self-regulation. * 

* * 

Second, there are important changes in the way the brain responds to 

rewards. * * * 

A third change in brain function over the course of adolescence involves 

increases in the simultaneous involvement of multiple brain regions in 

response to arousing stimuli, such as pictures of angry or terrified faces. 

Id. at 70-71. Steinberg concluded that “the consensus emerging from 

recent research on the adolescent brain is that teenagers are not as 

mature as adults in either brain structure or function.” Id. at 71. 
 Another article cited by the centers described evidence establishing 

that “the connectivity and efficiency of [cellular] connections” in the 

prefrontal cortex, the area of the brain responsible for executive 

functions including short-term memory, attention, inhibitory control, 

and decision making, “has been shown to continue developing 

throughout adolescence and early adulthood.” Gruber & YurgelunTodd, Neurobiology and the Law: A Role in Juvenile Justice?, 3 Ohio 

St.J.Crim.L. 321, 324 (2006). 

A juvenile’s brain is still developing until the juvenile is 18 years old and 

is no longer subject to juvenile adjudication, and likely well after. 

Recent studies suggest that juveniles are less able than adults to 

regulate their responses to external stimuli and to judge the 

consequences of their actions. I am not suggesting that this research 

absolves juveniles from all responsibility for their bad acts. But that 

research does suggest that even though our juvenile-justice system is 

based on the theories of protection, treatment, and rehabilitation, it is 

not properly designed to grapple with the realities of the not-yetdeveloped brains of juveniles. 

State v. Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138, ¶ 28-30 

(O’Connor, C.J., dissenting). 

Furthermore, the Ohio Supreme Court has held the following: 

Juvenile courts are legislative creations, see In re Agler (1969), 19 Ohio 

St.2d 70, 72, 48 O.O.2d 85, 249 N.E.2d 808, “rooted in social welfare 

philosophy rather than in the corpus juris.” Kent v. United States

(1966), 383 U.S. 541, 554, 86 S. Ct. 1045, 16 L.Ed.2d 84. The juvenile 

courts were premised on profoundly different assumptions and goals 

than a criminal court, United States v. Johnson (C.A.D.C.1994), 307 

U.S. App. D.C. 284, 28 F.3d 151, 157 (Wald, J., dissenting), and 

eschewed traditional, objective criminal standards and retributive 

notions of justice. Instead, a new civil adjudication scheme arose, with 

a focus on the state’s role as parens patriae and the vision that the 

courts would protect the wayward child from “evil influences,” “save” 

him from criminal prosecution, and provide him social and 

rehabilitative services. In re T.R. (1990), 52 Ohio St.3d 6, 15, 556 

N.E.2d 439; Children’s Home of Marion Cty. v. Fetter (1914), 90 Ohio 

St. 110, 127, 106 N.E. 761, 11 Ohio L. Rep. 518; Ex parte Januszewski

(C.C.Ohio, 1911), 196 F. 123, 127, 10 Ohio L. Rep. 151. 
In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 66. See also In 

re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 41 (“Juvenile 

offenders are more capable of change than adult offenders”). 

In the past two decades, the United States Supreme Court has 

released decisions that essentially create a special status of juvenile offenders in light 

of the Eighth Amendment’s prohibition on cruel and unusual punishment. In Miller 

v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), the court 

held that a “mandatory life without parole [prison sentence] for those under the age 

of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 

‘cruel and unusual punishments.’” In Graham v. Florida, 560 U.S. 48, 74, 130 S.Ct. 

2011, 176 L.Ed.2d 825 (2010), the court held that “for a juvenile offender who did 

not commit homicide the Eighth Amendment forbids the sentence of life without 

parole.” In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), 

the court held that the Eighth Amendment prohibits the imposition of the death 

penalty on juvenile offenders. 

In deciding this line of cases, the United States Supreme Court 

acknowledged the “qualities that distinguish juveniles from adults * * *.1” Roper at 

574. “It is difficult even for psychologists to differentiate between the juvenile 

 1 For an in-depth review of policy trends regarding the juvenile justice system, see 

Elizabeth S. Scott, SYMPOSIUM: “YOUTH MATTERS: MILLER V. ALABAMA AND THE 

FUTURE OF JUVENILE SENTENCING”: Guest Editor: John F. Stinneford: “Children are 

Different”: Constitutional Values and Justice Policy, 11 Ohio St. J. Crim. L. 71, 101 (Oct. 1, 

2013) (“most juveniles are likely to desist from offending as they mature into adulthood — 

unless the justice system pushes them in the direction of a criminal career”). 
offender whose crime reflects unfortunate yet transient immaturity, and the rare 

juvenile offender whose crime reflects irreparable corruption.” Id. at 573. In Miller, 

the court identified “three significant gaps between juveniles and adults.” Miller at 

471. 

First, children have a ‘“lack of maturity and an underdeveloped sense 

of responsibility,’” leading to recklessness, impulsivity, and heedless 

risk-taking. Roper, 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1. 

Second, children “are more vulnerable * * * to negative influences and 

outside pressures,” including from their family and peers; they have 

limited “contro[l] over their own environment” and lack the ability to 

extricate themselves from horrific, crime-producing settings. Ibid. And 

third, a child’s character is not as “well formed” as an adult’s; his traits 

are “less fixed” and his actions less likely to be “evidence of 

irretrievabl[e] deprav[ity].” Id., at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1. 

Miller at 471. 

These same policy arguments that the nation’s highest court has 

relied on to chip away at harsh sentences for juvenile offenders can be applied to 

taking a more pragmatic approach to Ohio’s serious youthful offender statute. We 

are aware that this statute passed constitutional muster in In re J.V., 134 Ohio St.3d 

1, 2012-Ohio-4961, 979 N.E.2d 1203. But see Emily L. Barth, Comment: Blurring 

the Lines: When the “Best Interests of the Child” Fall to the Wayside. An analysis 

of Ohio’s Serious Youthful Offender Statute, 79 U. Cin. L. Rev. 323, 344 (Fall, 2010) 

(“[T]he punitive nature of the SYO statute, especially the imposition of adult prison 

time, has destroyed any vestiges of the rehabilitative goals of the juvenile court 

system. Without the essential procedural due process right of a jury trial, juveniles 
sentenced under the discretionary SYO statute become vulnerable to arbitrary and 

unnecessary punishment.”). 

This does not mean, however, that the application of this statute 

cannot be challenged on a case-by-case basis. In the case at hand, O.M.’s conduct, 

which we do not condone, did not involve the most serious offenses, such as murder 

or rape. Evidence in the record shows that O.M. was influenced by his gang 

membership, and there is nothing to suggest that O.M. was involved in a gang prior 

to his time at ODYS. O.M. completed approximately one-third of his juvenile 

sentence at the time the state filed its motion to invoke the adult portion of his 

sentence, and O.M. had not yet completed most of the therapy programs offered by 

ODYS. In short, there is not clear and convincing evidence that O.M. was unlikely 

to be rehabilitated, and we find that the invocation of his adult sentence was 

premature. Accordingly, O.M.’s sole assigned error is sustained. 

Judgment reversed and case remanded to the juvenile court for 

proceedings consistent with this opinion. 

It is ordered that appellant recover from appellee 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, juvenile division, 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. 

PATRICIA ANN BLACKMON, PRESIDING JUDGE 

LARRY A. JONES, SR., J., and 

MARY EILEEN KILBANE, J., CONCUR