In re B.D.
Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant State Public Defender, 250 East Broad Street, #1400, Columbus, OH 43215-9308 (For Appellant-B.D., Minor).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, B.D., appeals from the judgment of the Portage County Court of Common Pleas, Juvenile Division, in which the trial court classified him as a Tier III juvenile sex offender. The issues to be determined by this court are whether a juvenile can be classified as a sex offender prior to his release from a secure facility; whether the court properly exercised its discretion in finding B.D. to be a Tier III offender; whether
{¶3} On July 12, 2011, B.D. admitted to the foregoing charges of Attempted Rape and Gross Sexual Imposition.
{¶4} On August 22, 2011, the disposition hearing was held. As a result of that hearing, the court ordered B.D. to be committed to the custody of the Ohio Department of Youth Services (“DYS“) for a period of not less than one year, and no longer than until B.D.’s twenty-first birthday, on the Attempted Rape charge. The court also ordered B.D. to be committed to DYS for a period of not less than six months, and no longer than until his twenty-first birthday, on the Gross Sexual Imposition charge. These sentences were to run concurrently. The court additionally classified B.D. as a discretionary Tier III juvenile sex offender registrant, but not as a public registry qualified sex offender. At the hearing, the trial court stated several times that the classification of B.D. was discretionary. The court noted that it had considered several reports and also reviewed victim statements to determine whether to classify B.D. as a juvenile sex offender registrant. Further victim statements and recommendations were also presented during the hearing. B.D.’s attorney did not object to the sex offender classification at the dispositional hearing.
{¶5} B.D. timely appeals and raises the following assignments of error:
{¶7} “[2.] The juvenile court abused its discretion when it classified [B.D.] as a tier III juvenile offender registrant when it made that determination based solely on [B.D.’s] offense and without the understanding that it had discretion to determine his tier level.
{¶8} “[3.] The juvenile court erred when it classified [B.D.] as a tier III juvenile offender registrant because the application of
{¶9} “[4.] [B.D.] was denied the effective assistance of counsel as guaranteed by the
{¶10} Because no objection was raised below regarding B.D.’s classification, this court’s review is limited to plain error.
{¶11} In his first assignment of error, B.D. argues that a juvenile offender who is committed to a secure facility must be classified as a sex offender only upon his release
{¶12}
The court that adjudicates a child a delinquent child, on the judge’s own motion, may conduct at the time of disposition of the child or, if the court commits the child for the delinquent act to the custody of a secure facility, may conduct at the time of the child’s release from the secure facility a hearing for the purposes described in division (B)(2) of this section if all of the following apply: (a) The act for which the child is adjudicated a delinquent child is a sexually oriented offense or a child-victim oriented offense that the child committed on or after January 1, 2002. (b) The child was fourteen or fifteen years of age at the time of committing the offense. (c) The court was not required to classify the child a juvenile offender registrant under
section 2152.82 of the Revised Code or as both a juvenile offender registrant and a public registry-qualified juvenile offender registrant undersection 2152.86 of the Revised Code .
{¶13} B.D. was fifteen years old at the time of the offense and was committed to the custody of DYS, a secure facility, at the August 22, 2011 dispositional hearing. He argues, therefore, that he should not have been classified as a sex offender until his release from DYS. We disagree.
{¶14} This court has addressed this identical issue on several occasions and has held that the hearings prescribed by
{¶15} The first assignment of error is without merit.
{¶16} In his second assignment of error, B.D. argues that the trial court abused its discretion in classifying him as a Tier III sex offender, since it made that determination based on its belief that the classification level was offense-based and mandatory. B.D. asserts that the trial court failed to realize that B.D. could be classified as a lower-level sex offender and points to instances in the transcript that he asserts show the court’s misunderstanding of the law.
{¶17} We initially note that several times throughout the transcript, the trial court stated that the sex offender classification was discretionary, not mandatory. From these statements, it is clear that the court was aware it was not required to classify B.D. as a sex offender. Although B.D. asserts that the trial court believed the classification was “offense-based,” the record shows the trial court took into consideration various factors in addition to the nature of the offenses committed, as required by
{¶18} The reports of the probation, detention, and psychology departments concerning B.D. fully explore the
{¶19} B.D. further argues that even if the trial court took into consideration the appropriate factors for discretionary classification, it improperly believed that attempted rape could be classified only as a Tier III offense and not as a lower-level offense.
{¶20} This court has found that in classifying juveniles as sex offenders, the juvenile court has discretion to determine which tier level to apply. In re D.P., 11th Dist. No. 2008-L-186, 2009-Ohio-6149, ¶18, rev’d on other grounds (“the statutes vest a juvenile court with full discretion to determine whether to classify a delinquent child as a Tier I, Tier II, or Tier III offender“) (citation omitted.)
{¶21} Although the lower court referred to the attempted rape charge as being a “Tier III offense” and the gross sexual imposition charge as a “Tier I offense,” the trial court never stated these findings were mandatory. Compare In re C.A., 2d Dist. No. 23022, 2009-Ohio-3303, ¶41, 77 (the appellate court reversed the trial court’s finding that the juvenile was a Tier III offender since the lower court improperly stated that
{¶22} The second assignment of error is without merit.
{¶23} In his third assignment of error, B.D. claims that
{¶24} The record reflects that B.D. did not raise this issue during the juvenile court proceedings. Generally, a defendant’s failure to raise an issue below constitutes a waiver of the right to challenge a statute. State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus (1986). And, the Supreme Court of Ohio has cautioned that constitutional issues should not be resolved unless absolutely necessary, i.e., if a case can be resolved without addressing the issue, such issues should not be ruled upon. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶9. Because, however, B.D. ultimately
{¶25} It is well-settled that statutes enacted by the Ohio General Assembly enjoy a strong presumption of constitutionality. See e.g. State v. Cook, 83 Ohio St.3d 404, 409 (1998). Legislation will not be held unconstitutional save a showing of unconstitutionality beyond a reasonable doubt. Id. The burden of proving a statute’s unconstitutionality rests upon the party challenging the legislation. State v. Thompkins, 75 Ohio St.3d 558, 560 (1996).
{¶26} The
{¶27} Under the relevant statutory scheme, juveniles who are 14 or 15 years old at the time they commit their offense and who have no prior adjudication for a sexually oriented offense, are subject to discretionary classification and registration. See
{¶28} With these points in mind, B.D. asserts that the age-based distinctions set forth under the statutory scheme violate a 15-year-old juvenile offender’s right to equal protection because they are not rationally related to a legitimate end. B.D. concedes that the classification and registration requirements have been codified to protect the community from potential juvenile re-offenders who have committed a sexually oriented offense. He does not argue this purpose is illegitimate. Rather, he asserts the disparate manner in which the scheme treats similarly situated offenders is not rationally related to this end. In particular, he claims there is no reasonable foundation for treating 14 and 15-year-old offenders, who are subject to registration, differently from 13 year old-offenders, who are not subject to registration. We do not agree.
{¶30} The statutory scheme in this case treats all 14- and 15-year-old sex offenders in B.D.’s situation similarly. Although it affords the trial court the discretion to classify such offenders, it nevertheless applies even-handedly to all 14- and 15-year-old first-time sex offenders. Construed thusly, we fail to perceive an equal protection violation.
{¶31} We acknowledge, however, appellant’s argument focuses upon the disparate treatment 14- and 15-year-old offenders receive in comparison to their 13-year-old counterparts. Appellant claims that the scheme violates equal protection because it treats 14- and 15-year-old sex offenders more harshly than 13-year-old offenders. This argument, however, presumes that 14- and 15-year-old offenders are similarly situated with 13-year-old offenders. Appellant, however, has failed to demonstrate that 14- and 15-year-old offenders classified under the scheme are similarly situated to their younger 13-year-old counterparts. While proximity in age may suggest a similar situation, the legislature made a policy decision to exclude 13-year-old offenders from the classification scheme. The United States Supreme Court has observed that, for purposes of equal protection analysis,
drawing lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary
classifications is neither possible nor necessary * * *. Such action by a legislature is presumed to be valid. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976).
{¶32} Although B.D. argues that the scheme provides no rationale for treating 14- and 15-year-old offenders differently from 13-year-old offenders, he has failed to overcome the presumption of validity. That is, he has neither established that the legislative policy of excluding 13-year-old offenders is unreasonable, nor has he demonstrated that the inclusion of 14 and 15-year-old offenders in the scheme is unreasonable. B.D. has therefore failed to overcome the presumptive validity of the “line-drawing” policy decision made by the General Assembly. As a result, we hold the age-based distinction relating to juvenile registration does not violate equal protection.
{¶33} One final point deserves attention, the concurring opinion asserts justice and prudence would be well-served by a lengthy exploration of the general impact of the Supreme Court’s recent decision in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446. In re C.P., however, is fundamentally inapplicable to this case. In In re C.P., the Supreme Court expressly held that
{¶35} In his fourth assignment of error, B.D. asserts that his counsel was ineffective by failing to raise the issues in the first and second assignments of error, that trial counsel failed to object to the timing of the classification hearing and failed to object to the imposition of an offense-based classification.
{¶36} Trial counsel may be deemed ineffective if an appealing party demonstrates “(1) counsel’s performance fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688 (1984). If a deficiency in counsel’s performance is found, the appellant must then show that prejudice resulted. State v. Swick, 11th Dist. No. 97-L-254, 2001 Ohio App. LEXIS 5857, *5 (Dec. 21, 2001).
{¶37} In order to show prejudice warranting reversal, B.D. must show that there is a reasonable probability that, but for counsel’s ineffectiveness, the outcome of the proceeding would have been different. Strickland at 694. Based on the analysis above, B.D. cannot demonstrate that the results of the proceedings would have been different but for counsel’s failure to object. A threshold issue in a claim of ineffective assistance of counsel is whether there was actual error on the part of B.D.’s trial counsel. State v. McCaleb, 11th Dist. No. 2002-L-157, 2004-Ohio-5940, ¶ 92. Since we have found no error as to the timing of the classification hearing, no error in the imposition of the Tier III classification, and no equal protection violation, we cannot conclude that B.D. received
{¶38} B.D. also argues that counsel was ineffective by failing to raise the issue of the equal protection clause violation because this issue was pending before the Ohio Supreme Court at the time of the disposition hearing in In re C.P. Since, however, In re C.P. does not apply to this case, we cannot conclude that B.D. suffered any prejudice by his counsel’s failure to raise this issue.
{¶39} B.D.’s final assignment of error is without merit.
{¶40} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas, Juvenile Division, classifying B.D. as a Tier III juvenile sex offender, is affirmed.
TIMOTHY P. CANNON, P.J., concurs,
DIANE V. GRENDELL, J., concurs with a Concurring Opinion.
DIANE V. GRENDELL, J., concurs with a Concurring Opinion.
{¶41} I concur in the majority’s decision to affirm the judgment of the lower court, classifying B.D. as a Tier III juvenile sex offender. I write separately, however, to discuss the applicability of the recent Ohio Supreme Court decision in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, to the present case.
{¶42} While the majority does not address this issue, B.D. noted in his brief that the subject of equal protection regarding juvenile sex offender registrants was pending
{¶43} In In re C.P., the Ohio Supreme Court was presented with the issue of whether
{¶44} In reaching this ruling, a majority of the Court engaged in a lengthy discussion regarding stigma, confidentiality, and reporting requirements with respect to juveniles. The majority’s analysis conveyed the need for protection of confidentiality of juvenile offender information in general, not just as it relates to
{¶45} Justice Cupp, in his dissent in In re C.P., observed that there was some confusion arising from the potential scope and applicability of the majority’s decision in
{¶46} Based on such concerns, the question arising from the majority decision in In re C.P. is whether that ruling is limited solely to cases involving automatic, lifetime juvenile sexual offender registration requirements or, based on the lengthy discussion in the majority decision, do the general juvenile sexual registration and notification requirements violate the confidentiality standards that govern juvenile proceedings. To protect Ohio residents and avoid any such confusion, justice and prudence dictate that In re C.P. be limited in its application solely to cases involving the imposition of automatic, mandatory juvenile sex offender registration and notification requirements under
{¶47} Moreover, regarding these other classifications, the Legislature has already decided that the fundamental public policy purposes for sex offender registration and notification outweigh any rehabilitative or confidentiality concerns with respect to juvenile sex offenders.
{¶48} In the present matter, B.D. was not classified as an automatic juvenile registrant under
{¶49} The majority asserts that the foregoing discussion of In re C.P. is advisory. Advisory opinions include those that give advice to the parties, do not affect the matters at issue in the case before the court, or rule on issues that are moot. Indiana Ins. Co. v. M.D.O. Homes, Inc., 11th Dist. No. 2000-L-167, 2001 Ohio App. LEXIS 5434, * 5 (Dec. 7, 2001); State v. Ramirez, 135 Ohio App.3d 89, 97, 732 N.E.2d 1065 (11th Dist.1997). The analysis in this opinion does not fall under the description of advisory opinions. As noted previously, the applicability of In re C.P. was brought into question by the
{¶50} The majority dismissively contends that In re C.P. is inapplicable and, therefore, should not be considered, but a more detailed analysis of its applicability is required. While the syllabus in In re C.P. states that the
{¶51} While the Ohio Supreme Court ultimately directly decided the constitutionality of
{¶52} For that reason, recognition and discussion of the In re C.P. decision in the context of this appeal is both legally necessary and intellectually warranted. Providing the lower courts within our jurisdiction a clear understanding of the law is a
{¶53} For the foregoing reasons, I respectfully concur with the decision upholding B.D.’s Tier III juvenile offender registrant classification.