COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72020 IN THE MATTER OF: ANTHONY : LAQUATRA, : : JOURNAL ENTRY Plaintiff-Appellant : and : OPINION : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 22, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court -- : Juvenile Court Division : Case No. 9612684 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: James R. Columbro 24726 Meadow Lane Westlake, Ohio 44145-4948 For defendant-appellee: Paul J. Daley Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellant, Anthony Laquatra, a minor, appeals his sentence, in the Common Pleas Court of Cuyahoga County, Juvenile Division, concerning a firearm specification, in connection with his conviction of felonious assault. Appellant asserts that the juvenile court abused its discretion when it sentenced Laquatra to 3 years in a juvenile detention center for the gun specification, when that specific charge was not found in the complaint. On September 17, 1996, a complaint was filed in the Juvenile Court Division of the Cuyahoga Court of Common Pleas alleging that on September 16, 1996, (sic), Laquatra committed felonious assault by means of a deadly weapon. The prosecutor's office then filed a Juv.R. 30 bindover motion, insisting Laquatra be tried as an adult. There was a hearing and determination by the court that although there was probable cause for appellant to have committed this crime, which if committed by an adult would be a felony, Laquatra was amenable to juvenile rehabilitation. Upon denial of this motion, a trial on the merits was set for January 7, 1997. On the day in question, Bradford Sneed, the victim, was driving in the vicinity of 2351 West 90th Street when he saw a car, in which appellant was a passenger ( the vehicle ), approaching him from the opposite direction. Sneed's car then swerved to miss something in the road and as a result, narrowly missed hitting the vehicle. As the incident occurred and the cars passed each other, some heated words were exchanged. Appellant and his friends continued up the street, but then circled around and passed by -3- Sneed's now parked vehicle. The appellant and friends then repeated this action a second time, however, this time they approached Sneed's car and began a verbal altercation. Sneed stated that he was arguing mostly with the passenger closest to him in the rear seat of the car, the appellant. Then, when Sneed turned to get back in his vehicle, he was shot four times. As a result of this shooting, which appellant admitted committing, Sneed has been rendered a paraplegic. After the final arguments there was an inquiry and discussion concerning whether or not a separate complaint was filed for the gun specification. The one page complaint filed September 17, 1996, specifically alleged Laquatra did unlawfully, knowingly cause or attempt to cause physical harm to Bradford Snied (sic) by means of a deadly weapon or dangerous ordnance, to wit: a Rino Galesi .25 caliber handgun, said conduct being in violation of Section 2903.11(A)(2) of the Ohio Revised Code, an aggravated felony of the second degree; FELONIOUS ASSAULT. The complaint, although mentioning the use of a handgun, never specifically alleges a violation of either gun specification, R.C. 2941.141 or R.C. 2941.144. Nor was the prosecution able to produce proof that a gun specification was filed either independently or separately. Further, counsel for appellant categorically denies ever receiving a copy of said complaint. The court finally concluded that it did not have one on file. However, the court did acknowledge that appellant was aware of the existence of a firearm specification due -4- to a proposed, albeit rejected, plea agreement which included the statement, and one year for the firearm specification. On January 8, 1997, the court found Laquatra delinquent on Count I, the felonious assault, as well as determined the prosecution had carried its burden concerning a gun specification, and found appellant delinquent on this charge as well. The court reasoned that if in fact a formal complaint on the gun specification was never filed, the court, in the alternative, was exercising its discretionary power under R.C. 2151.355(A)(7)(a). Further, the court reasoned the appellant was properly put on notice of the gun specification through the rejected plea agreement. The court sentenced appellant to the Ohio Department of Youth Services for a term of four years or, in the alternative, until his twenty-first birthday. This sentence consisted of a term of three years for the gun specification, pursuant to R.C. 2041.144, and an indefinite term of one year, or until the age of twenty-one, for the charge of felonious assault, R.C. 2903.11(A)(2). I. Appellant assigns five errors for our review. The contents of the first four errors are interrelated and, as a result, they will be addressed together. I. THE TRIAL COURT IS WITHOUT JURISDICTION TO IMPOSE A GUN SPECIFICATION TO ENHANCE PENALTY UPON FINDING OF GUILT, UNLESS THE ACCUSED IS PROVIDED AN OPPORTUNITY TO DEFEND WITH NOTICE OF THE ENHANCEMENT PROVISION FILED WITH THE COURT. II. THE JUVENILE COURT IS WITHOUT JURISDICTION TO ENHANCE ITS PENALTY WITHOUT NOTICE OF AN -5- ENHANCEMENT PROVISION FILED WITH THE COURT AND SERVED UPON THE DEFENDANT ACCUSED DELINQUENT SUCH THAT HE HAS NOTICE AND OPPORTUNITY AND DUE PROCESS TO DEFEND SAME, CONSTITUTING PLAIN ERROR. III. THE COURT ABUSED ITS DISCRETION IN EXERCISING ITS AUTHORITY UNDER OHIO REVISED CODE 2151.355 IN DISPOSITION OF THAT CASE. IV. THE TRIAL COURT'S SENTENCE IS UNREASONABLE, ARBITRARY AND UNCONSCIONABLE. The applicable statute governing the disposition of a child adjudged delinquent is R.C. 2151.355. R.C. 2151.355(A) provides in pertinent part: (A) If a child is adjudicated a delinquent child, the court may make any of the following orders of disposition: (7)(a) If a child is adjudicated a delinquent child for committing an act, other than a violation of Section 2923.12 of the Revised Code, that would be a felony if committed by an adult and is committed to the legal custody of the department of youth services pursuant to division (A)(4), (5), or (6) of this section and if the court determines that the child , if the child was an adult, would be guilty of a specification of the type set forth in section 2941.141, 2941.144, 2941.145, or 2941.146 of the Revised Code in relation to the act for which the child was adjudicated a delinquent child, commit the child to the legal custody of the department of youth services for institutionalization in a secure facility for the following period of time, subject to division (A)(7)(b) of this section: (ii) If the child would be guilty of a specification of the type set forth in Section 2941.144, 2941.145, or 2941.146 of the Revised Code, a period of three years. (12) Make any further disposition that the court finds proper, ***. -6- R.C. 2151.355 permits the juvenile court to make different types of dispositions in delinquency cases. Paragraph (A)(5)(c) expressly authorizes the juvenile court to order commitment for an indefinite term of at least one year when the offense committed would constitute a felony of the second degree if committed by an adult, such as felonious assault in the case sub judice. Paragraph (A)(7)(a)(ii) specifically mandates that if the adjudicated delinquent minor is convicted of an offense that, if an adult, would carry a specification for an automatic firearm, the delinquent minor should be ordered for commitment for a term of three years, to run prior to and consecutively with any second degree felony conviction. Further, paragraph (A)(12) of the statute is a catchall provision which gives the court broad discretionary power to make any further disposition the court finds proper. As a safety valve, R.C. 2151.38 authorizes the supervising court to grant an early release to a delinquent who was committed under R.C. 2152.355(A)(4)-(6) and has been deemed rehabilitated. It has been noted that [t]he provisions of the early release statute coupled with the discretionary power of the juvenile court *** strike a desired balance between the goals of confining the juvenile for purposes of rehabilitation and the release of the juvenile to society once satisfactory progress has been made toward rehabilitation. In Re Caldwell (1996), 76 Ohio St.3d 156, 160, 666 N.E.2d 1367. Appellant does not dispute that the juvenile court properly committed him for an indefinite term of one-year pursuant to -7- paragraph (A)(5). Rather, appellant maintains that the commitment order concerning the gun specification was an abuse of discretion by the juvenile court. It is appellant's contention that the court went beyond its authority in sentencing him for a charge that was never averred to in the complaint. As a result, appellant believes that his sentence should be reduced to the indefinite term of at least one year concerning the felonious assault. It has been determined that the Ohio General Assembly's intent in including the term any in paragraph (A)(12), was to give the trial judge discretion to take any steps the judge believes necessary to fully and completely implement the rehabilitative disposition of a juvenile under R.C. 2151.355. In Re Caldwell 76 Ohio St.3d at 159, citing, In Re Bremmer (April 1, 1993), Cuyahoga App. No. 62088, unreported. Such a construction of paragraph (A)(12) is consistent with the directives of R.C. 2151.01, which require a court in construing R.C. 2151.355 to liberally interpret and construe its terms to effectuate the purposes of Chapter 2151. R.C. 2151.01 sets forth its purposes as follows: The sections of Chapter 2151. of the Revised Code, ***, shall be liberally interpreted and construed so as to effectuate the following purposes: (A) To provide for the care, protection, and mental and physical development of children subject to Chapter 2151. Of the Revised Code; (B) To protect the public interest in removing the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefor a program of supervision, care, and rehabilitation; -8- (C) To achieve the foregoing purposes, whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interests of public safety; *** Accordingly, the question now becomes, that in light of the applicable statutes, did the trial court abuse its discretion in sentencing appellant on the gun specification. An abuse of discretion entails more than an error of law or judgment and to warrant a reversal the trial court's action must be unreasonable, arbitrary, or unconscionable. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301, 1308-1309; see, also, Apaydin v. Cleveland Clinic Foundation (1995), 105 Ohio App.3d 149, 152, 663 N.E.2d 745. A reviewing court may not substitute its judgment for that of the trial court absent an abuse of discretion. Id.; see, also, Holcumb v. Holcumb (1989), 44 Ohio St.3d 128, 131, 541 N.E.2d 597, 599. After a careful review of the record, we cannot say that the juvenile court abused its discretion by committing appellant to a term of three years for the gun specification. When a delinquent child has exhibited little remorse for his or her actions, has committed multiple delinquent acts and exhibited little respect for the safety of others, a court may determine that a longer period may be necessary for the child to be rehabilitated. The trial court has the opportunity to see and hear the delinquent child, to assess the consequences of the child's delinquent behavior, and to evaluate all the circumstances involved. In Re Caldwell, 76 Ohio St.3d at 161. Moreover, juvenile complaints alleging delinquency -9- are not to be read as strictly as criminal indictments. In Re Elliot (1993), 87 Ohio App.3d 816, 818, 623 N.E.2d 217. In In Re Sims (1983), 13 Ohio App.3d 37, 468 N.E.2d 111, it was noted that only the facts essential to the complaint need be stated therein and we should not *** hypertechnically (sic) construe the Juvenile Rules ***. As a result, if the facts alleged and proved in a juvenile hearing support the violation of additional statutes of which were not complained, the court is free to find a violation of that statute as well. In Re Burgess (1984), 13 Ohio App.3d 374, 375, 469 N.E.2d 967. In the instant case, the facts, as proven, support the finding of delinquency concerning a gun specification. Laquatra admitted to the shooting and to owning and possessing the automatic weapon. Moreover, it is also clear from the arranged, yet rejected plea bargain agreement, that a firearm specification was intended in the complaint, but was never filed. As a result, the court properly exercised its power of discretion under R.C. 2951.355(A)(12) by including this specification in the finding of fault and in applying the appropriate sentence. The juvenile court is in the best position to determine the delinquency of the child and, as a result, in the best position to determine what detainment is necessary to properly rehabilitate.The juvenile court did not abuse its discretion and accordingly these assignments of error are overruled. II. The appellant's fifth assignment of error states: -10- V. THE TRIAL COURT ERRONEOUSLY USES A PROPOSED PLEA AGREEMENT AS AND FOR NOTICE TO THE ACCUSED OF A NONEXISTENT GUN SPECIFICATION. As a result of the foregoing analysis, this assignment of error is rendered moot. See App.R. (12)(B)(6). Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court -- Juvenile Court Division to carry this judgment into execution. The finding of delinquency having been affirmed, any bail or stay of execution pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, J., and JOSEPH J. NAHRA SPELLACY, J., CONCUR. PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .