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

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 Nos. 108172 and 108173 

 v. : 

 

TERRANCE KIMBROUGH, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED AND REMANDED

RELEASED AND JOURNALIZED: June 4, 2020 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case Nos. CR-18-628578-A and CR-18-628608-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Yasmine M. Hasan and John Kirkland, 

Assistant Prosecuting Attorneys, for appellee.

Timothy F. Sweeney, for appellant. 

ANITA LASTER MAYS, J.: 

In these consolidated criminal appeals, defendant-appellant 

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

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

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

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

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

I. Background and Facts 

A. Collinwood Case 

A complaint was issued against Kimbrough by the juvenile court in 

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

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

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

in Cleveland’s Collinwood neighborhood: 

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

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

felony; 

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

felony; 

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

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

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

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

entered into plea agreements. 

B. Detention Center Case 

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

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

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

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

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

Collinwood case: 

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

Counts 2 and 3 — Inciting to violence, in violation of 

R.C. 2917.01(A)(1) and (A)(2), felonies of the third-degree; 

Counts 4 and 5 — Aggravated riot, in violation of R.C. 2917.02(B)(2) 

and (A)(2), felonies of the third and fourth degrees, 

respectively; 

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

the fourth degree; 

Count 7 — Possessing criminal tools, in violation of R.C. 2923.24(A), a 

felony of the fifth degree; and 

Count 8 — Disorderly conduct, in violation of R.C. 2917.11(A)(5), a 

misdemeanor of the fourth-degree misdemeanor. 

 

1 A.W. is sometimes referred in the record to by the nickname “A.J.,” but is identified as 

A.W. herein for purposes of consistency. T.P. is also erroneously identified in some 

portions of the record as “T.T.” but is consistently identified herein as T.P. 
C. Probable Cause and Amenability 

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

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

jurisdiction for adult criminal prosecution in the Collinwood and Detention Center 

cases. 

The probable cause hearing in the Collinwood case was held on 

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

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

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

evidence was presented by the defense in either hearing. 

The trial court found probable cause lacking for Count 5, the fourthdegree felony aggravated rioting charge under R.C. 2917.02(A)(2), in the Detention 

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

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

criminal offenses if committed by an adult. 

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

mandatory psychological evaluation. Father Kumse, Detective Kevin Warnock 

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

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

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

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

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

jurisdiction in both cases. 

D. Adult General Criminal Division 

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

Collinwood indictments were handed down against Kimbrough: 

 Count 1 — Attempted murder, alleged violation of R.C. 2903.02(A)/ 

2923.02, a felony of the first-degree; 

Count 2 — Felonious assault in alleged violation of R.C. 2903.11(A)(2), 

a felony of the second-degree; 

Counts 3 and 4 — Aggravated robbery in alleged violation of 

R.C. 2911.01(A)(1) and (A)(3), felonies of the first-degree; 

Count 5 — Kidnapping in alleged violation of R.C. 2905.01(B)(2), a 

felony of the first-degree; 

Count 6 — Receiving stolen property, in violation of R.C. 2913.51(A), a 

felony of the fourth-degree; 

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

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

Cuyahoga C.P. No. CR-628608-A. The remaining counts were charged against codelinquents J.M., A.W., and K.R. (Cuyahoga C.P. Nos. CR-628608-B, C, and D). 

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

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

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

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

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

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

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

year-old Kimbrough pleaded guilty to: 

Count 2 — Felonious assault in violation of R.C. 2903.11(A)(2), a felony 

of the second-degree; 

Count 3 — Aggravated robbery in violation of R.C. 2911.01(A)(1), a 

felony of the first-degree; and 

Count 6 — Receiving stolen property, in violation of R.C. 2913.51(A), a 

felony of the fourth-degree. 

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

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

In the Detention Center case, Kimbrough pleaded guilty to: 

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

Count 4 — Aggravated riot, in violation of R.C. 2917.02(B)(2), a felony 

of the third-degree; and 

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

the fourth-degree. 

In addition, the state explained: 

For purposes of the record, the State has indicated to defense counsel 

that it would not oppose concurrent sentences in these two cases, Your 

Honor. There has been no actual plea as to an agreed term of any 

length, but the State is not going to oppose concurrent sentences if 

that’s the Court’s pleasure. 

(Tr. 9.) 

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

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

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

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

Kimbrough was sentenced in the Detention Center case to two years 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1079 (8th Dist.1985). 

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

Kimbrough assigns as error: 

 I. The Cuyahoga County Juvenile Court violated Kimbrough’s right 

to due process of law, because that court’s probable cause 

determination was not supported by sufficient, reliable, and 

credible evidence, in violation of the Fifth and Fourteenth 

Amendments to the U.S. Constitution, and Article I, Sections 10 

and 16 of the Ohio Constitution. 

II. The juvenile court abused its discretion and violated 15-year-old 

Terrance Kimbrough’s right to due process of law when it 

determined that he was not amenable to treatment in the 

juvenile system, in violation of R.C. 2152.12(B); Fifth and 

Fourteenth Amendments to the U.S. Constitution, and Article I, 

Sections 10 and l6, Ohio Constitution. 

 A. The juvenile court cannot fail to consider available 

treatment options in the juvenile system merely because 

the youth was involved in the immature acts of destroying 

and/or defacing Detention Center property. 

 B. The juvenile court cannot ignore obvious evidence of 

immaturity, poor judgment, unformed and/or 

undeveloped character, and susceptibility to negative 

influences and peer pressure. 

 C. The juvenile court lost focus on the statute’s presumption 

of retention in the juvenile system and disregarded the 

professional assessment that numerous factors suggested 

Kimbrough was amenable to treatment. 

 D. The juvenile court never considered the wide array of 

dispositional options available to it for this young teen. 

E. The juvenile court did not consider how Kimbrough would 

fare in adult prison. 

III. The sentence imposed in the adult court is contrary to law 

and/or not supported by the record, thereby requiring this Court 

to take action under State v. Jones, 2018-Ohio-498 (8th Dist. 

App. 2018) (en banc) and R.C. 2953.08. 
III. Probable Cause 

A. Standard of Review 

Kimbrough argues that the trial court’s probable cause 

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

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

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

(a) After a complaint has been filed alleging that a child is a 

delinquent child for committing an act that would be aggravated 

murder, murder, attempted aggravated murder, or attempted 

murder if committed by an adult, the juvenile court at a hearing 

shall transfer the case if either of the following applies: * * * 

(ii) The child was fourteen or fifteen years of age at the time 

of the act charged, section 2152.10 of the Revised Code 

provides that the child is eligible for mandatory transfer, 

and there is probable cause to believe that the child 

committed the act charged. 

Id. 

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

(B) Unless the child is subject to mandatory transfer, if a child is 

fourteen years of age or older at the time of the act charged and 

if the child is charged with an act that would be a felony if 

committed by an adult, the child is eligible for discretionary 

transfer to the appropriate court for criminal prosecution. In 

determining whether to transfer the child for criminal 

prosecution, the juvenile court shall follow the procedures in 

section 2152.12 of the Revised Code. If the court does not transfer 

the child and if the court adjudicates the child to be a delinquent 

child for the act charged, the court shall issue an order of 

disposition in accordance with section 2152.11 of the Revised 

Code. 

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

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

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

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

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

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

Probable cause in this context is not guilt beyond a reasonable doubt; 

it is evidence that raises more than a suspicion of guilt. In re A.J.S., 120 

Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶16. This standard 

requires the juvenile court to “evaluate the quality of the evidence 

presented by the state in support of probable cause as well as any 

evidence presented by the respondent that attacks probable cause.” 

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

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

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

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

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

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

A.J.S. at ¶ 1. 

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

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

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

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

N.E.2d 629, ¶ 16. 
B. Discussion 

1. Collinwood Case 

Father Kumse testified at the probable cause hearing for Kimbrough, 

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

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

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

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

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

investigate. 

Father Kumse saw someone walking quickly down the alleyway near 

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

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

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

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

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

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

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

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

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

Father Kumse concluded that the females must have come from a 

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

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

but cannot say whether it was real or fake. 

Father Kumse described the parish video surveillance footage 

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

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

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

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

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

individuals. 

Another camera angle showed the two males coming from the area 

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

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

evidence of the shot. 

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

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

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

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

unable to identify the individuals. 

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

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

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

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

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

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

in the minivan theft report. 

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

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

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

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

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

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

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

Keeper gang. 

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

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

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

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

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

photographs of the scene and the minivan. 

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

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

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

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

Father Kumse. 

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

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

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

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

nickname was “Man-Man.” (Tr. 99.) 

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

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

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

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

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

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

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

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

Father Kumse walking. 

[T]hat’s when * * * J.M. and A.[W.] came out the bushes talking about 

I need everything and I thought they was talking to us because we had 

the cookies. But as soon as we got in the van, that’s when everything 

happened. * * * 

That’s when we heard the priest screaming and then we heard the 

gunshots. 
 (Tr. 117.) Kimbrough and M.M. were still in the van. J.M. and A.W. returned to the 

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

to T.P.’s house. 

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

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

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

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

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

The group did not discuss committing a robbery when they were 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

aggravated robbery charge with the gun specification is supported. 

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

remaining counts, finding that Kimbrough 

[i]s at least on the probable cause level culpable with respect to the 

complicity. He was more than a bystander in this instance. Aiding and 

abetting, that is what [Kimbrough] was doing in this instance. Same 

thing holds true for the felonious assault * * * and the receiving stolen 

property [charges] with the one- and three-year gun spec. 

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

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

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

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

 2 As the state points out, Kimbrough was not convicted of tampering with evidence 

and so was not prejudiced as a result. State v. Frazier, 8th Dist. Cuyahoga Nos. 106772 

and 106773, 2019-Ohio-1433, ¶ 30, citing State v. Lenard, 8th Dist. Cuyahoga No. 99149, 

2013-Ohio-1995, ¶ 19 (“appellant benefits from a dismissal because he has one fewer 

conviction.”). 
 After a de novo review of the record, we do not find that the trial 

court abused its discretion by determining that probable cause exists that 

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

exercised the discretionary bindover determination and ordered a psychological 

examination prior to the amenability hearing. 

2. Detention Center Case 

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

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

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

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

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

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

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

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

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

incident. Nevel spent considerable time describing the security video depictions 

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

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

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

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

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

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

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

Witnesses testified that the group was attempting to escape. The 

disturbance lasted for approximately 90 minutes with periodic calmer interludes. 

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

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

(Tr. 82.) One of the pods had 

a bunch of smashed-up glass. The windows were smashed. A bunch of 

males had pipes. I believe they were the legs of a table. They were 

hitting windows. They spilled liquids all over the floors and were not 

compliant with any orders from the staff. 

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

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

as the apparent ring leaders. 

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

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

sprinkler system and detainees were lathering their bodies with soap. 

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

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

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

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

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

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

but a group committing several acts together.” Id. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

commission of any offense of violence.” 

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

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

D.W. along with the others in the pod: 
The video clearly indicates that there were four or more people engaged 

in a course of disorderly conduct with the purpose to intimate a public 

official, employee, into taking or refraining from official action or the 

purpose to hinder, impede or obstruct the function of government. 

All those guards were standing outside. The police officers were 

standing outside, not wanted to enter because of the behavior [of] these 

young men. 

They were being intimidated by their behavior, flexing, throwing up 

what the officers believed to be gang signs, although they weren’t 

specific in being able to name them, but they believed that that’s what 

they were, but as a way to intimidate them and prevent them or hinder 

them from being able to engage in their official acts, to hinder, to 

impede or obstruct it. 

(Tr. 155-156.) 

Finally, there is probable cause for the vandalism elements under 

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

No person shall knowingly cause serious physical harm to property that 

is owned, leased, or controlled by a governmental entity. A 

governmental entity includes, but is not limited to, the state or a 

political subdivision of the state, a school district, the board of trustees 

of a public library or public university, or any other body corporate and 

politic responsible for governmental activities only in geographical 

areas smaller than that of the state. 

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

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

units. 

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

determination of probable cause that Kimbrough committed the crimes charged 

constitutes an abuse of discretion. 

C. Conclusion 
The first assigned error lacks merit. 

IV. Amenability 

A. Standard of Review 

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

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

9, ¶ 36 (8th Dist.), citing State v. Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio3725, ¶ 9, citing In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, 

¶ 39. 

[A] “juvenile court enjoys wide latitude to retain or relinquish 

jurisdiction.” State v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181 

(1989). And given the discretion afforded the juvenile court by the 

legislature in determining a juvenile’s amenability to the juvenile 

justice system, “[i]f there is some rational and factual basis to support 

the trial court’s decision, we are duty bound to affirm it regardless of 

our personal views of the evidence.” State v. West, 167 Ohio App.3d 

598, 2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.). We therefore 

will not reverse a juvenile court’s decision to transfer unless the 

decision was unreasonable, arbitrary, or unconscionable. State v. 

Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980). 

Johnson at ¶ 36. 

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

“Under R.C. 2152.12(B), after a complaint has been filed charging a 

child with offenses that would be a felony if committed by an adult, a 

juvenile court may transfer jurisdiction to the general division of the 

common pleas court if it finds that (1) the child was 14 years of age or 

older at the time of the act; (2) there is probable cause that the child 

committed the act; and (3) the child is not amenable to rehabilitation 

within the juvenile justice system and, to ensure the safety of the 

community, the child should be subject to adult sanctions.” 

Johnson at ¶ 33, quoting Jones at ¶ 7. 

Juv.R. 30(C) provides: 
Discretionary transfer. In any proceeding in which transfer of a case for 

criminal prosecution is permitted, but not required, by statute, and in 

which probable cause is found at the preliminary hearing, the court 

shall continue the proceeding for full investigation. The investigation 

shall include a mental examination of the child by a public or private 

agency or by a person qualified to make the examination. When the 

investigation is completed, an amenability hearing shall be held to 

determine whether to transfer jurisdiction. The criteria for transfer 

shall be as provided by statute. 

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

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

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

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

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

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

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

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

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

No. 99044, 2013-Ohio-3725, ¶ 8. 

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

the case: 

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

harm, or serious economic harm, as a result of the alleged act. 

(2) The physical or psychological harm suffered by the victim due to 

the alleged act of the child was exacerbated because of the 

physical or psychological vulnerability or the age of the victim. 

(3) The child’s relationship with the victim facilitated the act 

charged. 
(4) The child allegedly committed the act charged for hire or as a 

part of a gang or other organized criminal activity. 

(5) The child had a firearm on or about the child’s person or under 

the child’s control at the time of the act charged, the act charged 

is not a violation of section 2923.12 of the Revised Code, and the 

child, during the commission of the act charged, allegedly used 

or displayed the firearm, brandished the firearm, or indicated 

that the child possessed a firearm. 

(6) At the time of the act charged, the child was awaiting 

adjudication or disposition as a delinquent child, was under a 

community control sanction, or was on parole for a prior 

delinquent child adjudication or conviction. 

(7) The results of any previous juvenile sanctions and programs 

indicate that rehabilitation of the child will not occur in the 

juvenile system. 

(8) The child is emotionally, physically, or psychologically mature 

enough for the transfer. 

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

juvenile system. 

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

of jurisdiction by the juvenile court. 

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

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

act charged. 

(3) The child was not the principal actor in the act charged, or, at the 

time of the act charged, the child was under the negative 

influence or coercion of another person. 

(4) The child did not cause physical harm to any person or property, 

or have reasonable cause to believe that harm of that nature 

would occur, in allegedly committing the act charged. 

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

mature enough for the transfer. 

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

(8) There is sufficient time to rehabilitate the child within the 

juvenile system and the level of security available in the juvenile 

system provides a reasonable assurance of public safety. 

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

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

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

B. Discussion 

The Collinwood and Detention Center cases were consolidated for 

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

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

Bradley. Photographic and video evidence was also admitted. 

 Father Kumse briefly described the events and testified to the 

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

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

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

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

in the neighborhood. 

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

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

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

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

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

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

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

 Jenkins recounted the events and testified to the disruptions to 

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

the hearing but were estimated at $200,000. 

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

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

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

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

Kimbrough argues that he is amenable to rehabilitation in the 

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

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

(B) Except as provided in division (A) of this section, after a 

complaint has been filed alleging that a child is a delinquent child 

for committing an act that would be a felony if committed by an 

adult, the juvenile court at a hearing may transfer the case if the 

court finds all of the following: 

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

the act charged. 

(2) There is probable cause to believe that the child 

committed the act charged. 

(3) The child is not amenable to care or rehabilitation within 

the juvenile system, and the safety of the community may 

require that the child be subject to adult sanctions. In 

making its decision under this division, the court shall 
consider whether the applicable factors under division (D) 

of this section indicating that the case should be 

transferred outweigh the applicable factors under division 

(E) of this section indicating that the case should not be 

transferred. The record shall indicate the specific factors 

that were applicable and that the court weighed. 

More specifically, Kimbrough argues: 

The juvenile court cannot fail to consider available treatment options 

in the juvenile system merely because the youth was involved in the 

immature acts of destroying and/or defacing Detention Center 

property. 

The juvenile court cannot ignore obvious evidence of immaturity, poor 

judgment, unformed and/or undeveloped character, and susceptibility 

to negative influences and peer pressure. 

The juvenile court lost focus on the statute’s presumption of retention 

in the juvenile system and disregarded the professional assessment 

that numerous factors suggested Kimbrough was amenable to 

treatment. 

The juvenile court never considered the wide array of dispositional 

options available to it for this young teen. 

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

prison. 

The record does not support Kimbrough’s assertions. 

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

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

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

1. Collinwood Case 

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

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

under R.C. 2152.12(D)(1). (Tr. 49.) 
[Father Kumse] has now further corroborated the issue that his 

shoulder has caused him some significant problems wherein he’s going 

to have to have surgery at some point to relieve the problems that he’s 

having sleeping and just operating the shoulder on a daily basis. 

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

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

“age and his injury.” Id. 

Kimbrough did not have a relationship with the victim negating 

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

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

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

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

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

And then we have video evidence of him defacing the property here 

with Lakeshore Man Man, Free Lakeshore Man Man, and that’s 

Terrance Kimbrough actually causing that in the wall. 

That’s enough for the Court to find that he’s part of a gang and the tag 

at the place of the incident shows that it’s connected with that incident, 

so the Court finds that that particular factor is applicable. 

(Tr. 51.) 

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

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

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

awaiting adjudication, community control or otherwise subject to 

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

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

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

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

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

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

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

juvenile system. 

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

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

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

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

immature. (Tr. 54.) 

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

supported by the record: 

The Court does not find, however, that there is insufficient time for 

rehabilitation in the Juvenile System just based on his age. He has not 

reached the age of majority. He has at least two years under that status. 

Additionally, the Court does have jurisdiction for five years because if 

the Court decide that he is amenable and he’s found delinquent in [this 

case] as well as the [Detention Center] case, the Court could construct 

a disposition that keeps him at the Ohio Department of Youth Services 

until he’s 21. 

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

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

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

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

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

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

testimony and Kimbrough had been previously found delinquent so that 

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

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

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

The trial court reiterated its finding that sufficient time existed for 

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

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

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

Well, I can’t necessarily say that if in fact he participates or there’s 

probable cause indicating that he’s participated in acts which destroy 

the very system that we have here to ensure that the public will be safe. 

Additionally, he is engaged in assaultive behaviors, destroying property 

that belongs to the public and, therefore, only half of that factor would 

be applicable. 

And so the Court find there’s one and a half factors against transfer 

versus four factors favoring transfer. 

(Tr. 56-57.) 

Finally, the trial court considered the seriousness of the aggravated 

robbery offense. 
I had the opportunity to watch the video where [Father Kumse] is being 

chased ty two individuals firing guns at him, a defenseless elderly priest 

whose only responsibility that night was to check on the chicken coop 

and then he is frightened to the point where he things that he’s about 

to lose his life all for what? 

And Terrance Kimbrough, while he may not have been one of the 

individuals firing the gun, he still was involved. He still was complicit 

as much as they were because he was there, and based on the testimony 

that the Court recalls, they had all been together most of the day. 

So it’s not a surprise that this particularly incident was about to 

transpire. You know, they all jumped back into this car with 

[Kimbrough] and they all left together. 

(Tr. 57-58.) 

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

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

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

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

jurisdiction.” Id. 

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

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

counts charged in the Collinwood case. 

The court finds after a full investigation, including a mental 

examination of said child made by a duly qualified person, and after full 

consideration of the child’s prior juvenile record, family environment, 

school record, efforts previously made to treat and rehabilitate the child 

including prior commitments to the Department of Youth Services, the 

nature and severity of the offense, herein, the age physical and mental 

condition of the victim as effected by the matter herein, and other 

matters of evidence, that there are reasonable grounds to believe that 

the child herein is not amenable to care or rehabilitation within the 

juvenile system. 
The court further finds that the safety of the community may require 

that the child be subject to adult sanctions. 

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

The entry listed as factors in favor of transfer pursuant to 

R.C. 2152.12(D): 

The victim suffered physical or psychological harm, or serious 

economic harm. 

The child allegedly committed the act charged for hire or as a part of a 

gang or other organized criminal activity. 

The results of any previous juvenile sanctions and programs indicate 

that rehabilitation of the child will not occur in the juvenile system. 

The child is emotionally, physically, or psychologically mature enough 

for transfer. 

Id. 

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

juvenile court: 

The child was not the principal actor in the act charged, or, at the time 

of the act charged, the child was under the negative influence or 

coercion of another person. 

There is sufficient time to rehabilitate the child within the juvenile 

system, and the level of security available in the juvenile system 

provides a reasonable assurance of public safety. 

Id. 

2. Detention Center Case 

The trial court reviewed each of the factors supporting bindover 

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

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

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

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

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

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

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

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

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

juvenile sanctions were not successful. 

The trial court determined that Kimbrough was emotionally, 

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

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

the nine factors supported transfer. 

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

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

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

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

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

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

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

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

does not support retention. 
The trial court concluded, 

So it’s one and a half factors against transfer. And again, seriousness of 

the act, the destruction of the Detention Center, that was just 

outrageous what I witnessed. 

And then what caused me even more consternation and anger with 

[Kimbrough] and finding that * * * he believes that the Juvenile Justice 

System is a joke is his behavior in that back [holding] cell and his 

continued inability to be compliant with the rules all the time instead 

of engaging in physical altercations with individuals downstairs while 

he’s been confined. 

This is a big joke to him, and since that’s the case, we’re going to send 

him where maybe he doesn’t think it’s a big joke and he’ll take it more 

seriously. 

The Court find this time again he is not amenable to the care and 

rehabilitation of the Juvenile Justice System. 

The Court finds that the safety of the community may require that those 

sanctions be imposed and, therefore, the Court is going to relinquish its 

jurisdiction over this matter. 

(Tr. 62-63.) 

C. Conclusion 

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

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

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

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

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

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

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

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

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

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

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

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

at ¶ 44. 

V. Sentence 

A. Contrary to Law 

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

and is not supported by the record. He seeks relief under State v. Jones, 2018-Ohio498, 105 N.E. 702 (8th Dist.) (en banc) and R.C. 2953.08. In Jones, an en banc 

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

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

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

¶ 9. 

However, 

[W]e may disturb a felony sentence only if we clearly and convincingly 

find that either “the record does not support the sentencing court’s 

findings” or “the sentence is otherwise contrary to law.” 

R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio1002, 59 N.E.3d 1231, ¶ 1, 21-23. 

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

We are aware that 

[a] plea of guilty is a complete admission of guilt. A defendant who 

enters a plea of guilty waives the right to appeal all nonjurisdictional 
issues arising at prior stages of the proceedings, although the defendant 

may contest the constitutionality of the plea itself. 

(Citations omitted.) State v. Bogan, 8th Dist. Cuyahoga No. 84468, 2005-Ohio3412, ¶ 14. However, we elect to address the issue in the interest of justice under the 

unique circumstances of this case. 

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

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

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

property, R.C. 2913.51(A), a fourth-degree felony. Two of the counts included oneyear firearm and two weapons forfeiture specifications. The convictions in the 

Detention Center case were for: Count 1, escape, R.C. 2921.34(A)(1), a seconddegree felony; Count 4, aggravated riot, R.C. 2917.02(B)(2), a third-degree felony; 

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

The Collinwood Counts 2 and 3 merged as allied offenses and 

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

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

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

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

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

Collinwood case. 

The sentencing range for aggravated robbery is three to ten years 

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

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

81949, 2003-Ohio-3950, ¶ 19-21. 

In Ohio, 

[a] sentence is contrary to law if the sentence falls outside the statutory 

range or if the trial court fails to consider the purposes and principles 

of felony sentencing set forth in R.C. 2929.11 and the sentencing factors 

set forth in R.C. 2929.12. See, e.g., State v. Pawlak, 8th Dist. Cuyahoga 

No. 103444, 2016-Ohio-5926, ¶ 58; State v. Keith, 8th Dist. Cuyahoga 

Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 8, citing State v. Hinton, 

8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10. 

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

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

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

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

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

B. Disproportionate Sentence 

Kimbrough also argues that his sentence was disproportionate to 

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

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

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

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

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

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

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

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

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

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

Kimbrough completed his ninth-grade coursework while 

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

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

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

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

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

pursue architecture. 

Father Kumse expressly and eloquently accepted Kimbrough’s 

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

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

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

opportunity to secure money for gasoline. 

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

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

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

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

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

This court has recognized: 

The courts have not interpreted the notion of consistency to mean 

equal punishment for codefendants. State v. Harder, 8th Dist. 

Cuyahoga No. 98409, 2013-Ohio-580, ¶ 7. Consistency is not 

synonymous with uniformity. State v. Black, 8th Dist. Cuyahoga 

No. 100114, 2014-Ohio-2976, ¶ 12. Rather, the consistency 

requirement is satisfied when a trial court properly considers the 

statutory sentencing factors and principles. State v. O’Keefe, 10th Dist. 

Franklin Nos. 08AP-724, 08AP-725, and 08AP-726, 2009-Ohio-1563, 

¶ 41. “‘[C]onsistency is achieved by weighing the factors enumerated in 

R.C. 2929.11 and 2929.12 and applying them to the facts of each 

particular case.’” State v. Wells, 8th Dist. Cuyahoga No. 100365, 2014-

Ohio-3032, ¶ 12, quoting State v. Lababidi, 8th Dist. Cuyahoga 

No. 100242, 2014-Ohio-2267, ¶ 16. Consistency “‘requires a trial court 

to weigh the same factors for each defendant, which will ultimately 

result in an outcome that is rational and predictable.’” State v. 

Georgakopoulos, 8th Dist. Cuyahoga No. 81934, 2003-Ohio-4341, 

¶ 26, quoting State v. Quine, 9th Dist. Summit No. 20968, 2002-Ohio6987, ¶ 12. 

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

In addition, 

“[c]onsistency accepts divergence within a range of sentences and takes 

into consideration the trial court’s discretion to weigh statutory 

factors.” State v. Hyland, 12th Dist. Butler No. CA2005-05-103, 2006-

Ohio-339. See also State v. Switzer, 8th Dist. Cuyahoga No. 102175, 

2015-Ohio-2954; State v. Armstrong, 2d Dist. Champaign No. 2015-

CA-31, 2016-Ohio-5263; State v. Murphy, 10th Dist. Franklin 

No. 12AP-952, 2013-Ohio-5599, ¶ 14. “Although the offenses may be 

similar, distinguishing factors may justify dissimilar treatment.” 

State v. Dawson, 8th Dist. Cuyahoga No. 86417, 2006-Ohio-1083, ¶ 31. 

 Id. at ¶ 12. 

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

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

other dispositional options such as blended sentencing for serious youth offenders 

“SYO.” 

“‘A juvenile charged as a potential serious youthful offender does not 

face bindover to an adult court; the case remains in the juvenile court. 

Under R.C. 2152.11(A), a juvenile defendant who commits certain acts 

is eligible for ‘a more restrictive disposition.’ That ‘more restricted 

disposition’ is a ‘serious youthful offender’ disposition and includes 

what is known as a blended sentence — a traditional juvenile 

disposition coupled with the imposition of a stayed adult sentence. 

R.C. 2152.13. The adult sentence remains stayed unless the juvenile 

fails to successfully complete his or her traditional juvenile disposition. 

R.C. 2152.13(D)(2)(a)(iii). Theoretically, the threat of the imposition of 

an adult sentence encourages a juvenile’s cooperation in his own 

rehabilitation, functioning as both carrot and stick.’” 

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

N.E.2d 209, ¶ 18. 

 SYO designations may only be invoked under certain circumstances. 

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

The primary goal of juvenile sentencing is to: 

“provide for the care, protection, and mental and physical development 

of children subject to this chapter, protect the public interest and 

safety, hold the offender accountable for the offender’s actions, restore 

the victim, and rehabilitate the offender.” 

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

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

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

 Notwithstanding the purpose and policy of the SYO designation, a 

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

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

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

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

case. 

 Moreover, 

Discretionary transfer, as its name implies, allows judges the discretion 

to transfer or bind over to adult court certain juveniles who do not 

appear to be amenable to care or rehabilitation within the juvenile 

system or appear to be a threat to public safety. 

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

 The final assigned error is without merit. 

VI. Conclusion 

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

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

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

The court finds there were reasonable grounds for this appeal. 

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

pleas court to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

______________________________ 

ANITA LASTER MAYS, JUDGE 

EILEEN T. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY; 

LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION 

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

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

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

relevant part as follows: 

(A) The overriding purposes for dispositions under this chapter are to 

provide for the care, protection, and mental and physical 

development of children subject to this chapter, protect the public 

interest and safety, hold the offender accountable for the offender’s 

actions, restore the victim, and rehabilitate the offender. These 

purposes shall be achieved by a system of graduated sanctions and 

services. 

(B) Dispositions under this chapter shall be reasonably calculated to 

achieve the overriding purposes set forth in this section, 

commensurate with and not demeaning to the seriousness of the 

delinquent child’s or the juvenile traffic offender’s conduct and its 

impact on the victim, and consistent with dispositions for similar 

acts committed by similar delinquent children and juvenile traffic 

offenders. The court shall not base the disposition on the race, 

ethnic background, gender, or religion of the delinquent child or 

juvenile traffic offender. 

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

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

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

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

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

criminal system is appropriate. 

Initially, the juvenile justice system had a bent toward rehabilitating 

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

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

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

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

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

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

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

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

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

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

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

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

 3 See Morris at 643 for a discussion of the effects of the introduction of crack 

cocaine in inner cities and the effect it had on crime among African-American youths, all 

while widening the arrest rates for African-American youth and their counterpart white 

juvenile offenders. In 1984,“‘[b]lack youths’ Violent Crime Index arrests started at a rate 

six times that of white youths * * * and by 1994 rose to * * * a 58% increase.’” Id. at 644, 

quoting Feld at 84. 
case, we’re gonna send him where maybe he doesn’t think it’s a big joke and he’ll 

take it more seriously.” 

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

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

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

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

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

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

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

have lasting, harmful individual and societal effects. 

“‘Imprisoning juveniles increases rather than decreases the amount 

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

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

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

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

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

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

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

and Reporting 4, 26 (2011). 

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

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

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

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

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

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

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

citing Feld at id. 

Of course, there are other collateral consequences of sending 

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

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

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

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

(Feb. 2017). 

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

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

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

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

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

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

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

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

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

Discretionary Bindovers 

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

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

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

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

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

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

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

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

R.C. 2152.12(E). 

Although discretionary bindovers require probable cause 

determinations, many discretionary bindover decisions turn on whether a minor 

was amenable to care or rehabilitation within the juvenile system. 

In contrast to a probable-cause determination, a denial of a 

discretionary-bindover request on the basis of amenability does not 

necessitate dismissal of any of the charges in the complaint. Rather, the 

juvenile court retains jurisdiction of the case, the complaint continues 

 4 See Morris at 670-672 for a discussion of a study conducted on data involving 

youth from the New York and New Jersey juvenile justice systems; New York’s age of 

majority for criminal offending is statutorily set at 16, while New Jersey’s age is 18. The 

conclusion: “juvenile prisons are a better option than adult prisons for young offenders. 

The overall lasting psychological effects on the juvenile outweigh the fact that adult courts 

offer a wider array of services and seem marginally more effective at preventing crimes.” 

Id. at 671-672, citing Fagan & Kupchick, Juvenile Incarceration and the Pains of 

Imprisonment, 3 Duke F.L. Soc. Change 57-58 (2011). 
as it was filed, and if appropriate, the child is prosecuted as a serious 

youthful offender under R.C. 2152.11. 

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

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

its determination regarding Kimbrough’s amenability to care or rehabilitation 

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

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

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

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

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

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

The amenability evaluation in this case showed several grounds that 

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

evaluation demonstrated that Kimbrough was doing relatively well in school and 

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

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

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

grade.” 

Kimbrough did not have any noted problematic involvement with 

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

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

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

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

(“DYS”) facility. 

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

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

made strides. 

Based on the above mentioned, the expert who completed 

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

responsive to the care and rehabilitative services available through the Juvenile 

Justice System.” The evaluation noted: 

1. [Kimbrough] had relatively minimal involvement with the 

Juvenile Justice System. He has one adjudication for 

delinquency. 

2. [Kimbrough] has received only probation program services 

through the Juvenile Justice System. He has never been 

committed to or placed in a facility of [DYS]. 

3. [Kimbrough] did show an adequate adjustment to his probation. 

He was successfully terminated from his probation. 

4. [Kimbrough] has had no history of significant problematic or 

acting out behaviors in the school setting. 

5. [Kimbrough] has had no known history of the problematic use 

of alcohol or other drugs. 

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

the age of majority. 

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

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

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

damage done to the detention center. 

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

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

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

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

Kimbrough’s involvement is necessary. 

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

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

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

fire any weapons at the priest; and there was no evidence that he knew the codelinquents were going to rob and assault Father Kumse. 

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

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

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

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

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

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

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

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

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

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

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

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

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

left the pod area. 

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

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

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

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

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

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

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

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

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

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

the same time. 

Because this was a discretionary bindover, the juvenile court was 

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

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

I believe that 
[t]he juvenile justice system should look for reform that “aims to enable 

juveniles to make a successful, prosocial transition to adulthood, while 

holding them accountable for their wrongdoing, treating them fairly, 

and protecting society from further offending.” 

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

Juvenile Justice: A Developmental Approach 89 (2013). 

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

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

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

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

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

transferring Kimbrough to the adult system. I therefore dissent.