In re C.P.
Timothy Young, Ohio State Public Defender, and Brooke M. Burns, Ohio State Assistant Public Defender, Columbus, Ohio, for Appellant.
C. David Warren, Athens County Prosecuting Attorney, and George J. Reitmeier, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
Kline, J.:
{¶1} C.P. appeals the judgment of the trial court, which classified him as a tier III juvenile offender registrant and a public registry-qualified juvenile offender registrant. On appeal, C.P. contends that Ohio‘s recently enacted registration laws are unconstitutional as applied to juveniles. Specifically, C.P. contends that the mandatory imposition of registrant status on serious youthful offenders is unconstitutional because it violates C.P.‘s substantive due process rights, C.P.‘s right to equal protection of the laws, and C.P.‘s right to be free from cruel and unusual punishment. We disagree. First, C.P. fails to establish that the proceedings below infringed on a fundamental liberty interest of his. Second, C.P. fails to rebut our presumption that the statute is rationally related to a legitimate legislative purpose. Third, we have previously
{¶2} C.P. also contends that his attorney‘s failure to raise these constitutional arguments shows that his attorney provided ineffective assistance. But we have found C.P.‘s arguments to be without merit. As such, any objection raised by his attorney would have been appropriately denied. Accordingly, we affirm the judgment of the trial court.
I.
{¶3} On June 26, 2009, the Athens County Sheriff‘s Department filed a complaint that accused C.P. of two counts of rape and one count of kidnapping. That same day, the State filed a motion requesting the trial court bind C.P. over to Athens County Common Pleas Court. At a hearing, the trial court denied the State‘s motion to transfer jurisdiction on August 24, 2009.
{¶4} The grand jury indicted C.P. on September 14, 2009. See
{¶5} On September 30, 2009, the trial court held a dispositional hearing. According to a later entry, the trial court found C.P. to be delinquent based on his admissions. The trial court further found that “[p]ursuant to the parties’ joint recommendation and
{¶6} C.P. now appeals and raises the following assignments of error: I. “The trial court erred when it classified C.P. as a public registry-qualified juvenile offender registrant, as
II.
{¶7} In his first three assignments of error, C.P. challenges the constitutionality of Ohio‘s recent changes to the treatment of juveniles who have committed a sexually oriented offense. The Ohio legislature enacted these changes via Senate Bill 10 (“S.B. 10”). Statutes enacted in Ohio, including S.B. 10, are “presumed to be constitutional.”
A. Due Process
{¶8} In his first assignment of error, C.P. contends that
{¶9} Since C.P. relies on substantive due process, he must establish that the challenged provision violates a fundamental liberty interest. See Reno v. Flores (1993), 507 U.S. 292, 301-02 (substantive due process “forbids the government to infringe
{¶10} C.P. contends that public registration for sex offenders constitutes a shaming punishment. However, we find that Ohio‘s present scheme of public notification of sex offenders is indistinguishable from Smith v. Doe (2003), 538 U.S. 84. In that case, the State of Alaska required certain offenders to register with the Alaska Department of Public Safety, and that department then disseminated the offender‘s “name, aliases, address, photograph, physical description, description[,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements . . . or cannot be located.” Smith at 90-91 (alterations in original, citations omitted).
{¶11} The United States Supreme Court rejected the argument that this notification constituted punishment because of its resemblance to colonial shaming punishments. “Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Smith at 98. This conclusion is one that other Ohio Courts of Appeals have reached. State v. Maggy, Trumbull App. No. 2008-T-0078, 2009-Ohio-3180, at ¶68-71; State v. Williams, Warren App. No. CA2008-02-029, 2008-Ohio-6195, at ¶61-66; State v. Swank, Lake App. No. 2008-L-019, 2008-Ohio-6059, at ¶85; State v. King, Miami App. No. 08-CA-02, 2008-Ohio-2594, at ¶17-20.
{¶12} We see no material difference in the nature of the dissemination of information between Ohio‘s notification scheme and Alaska‘s notification scheme. And C.P. provides us with no argument that distinguishes Smith or the other cited cases above. We, therefore, find that the imposition of community notification requirements does not serve to render Ohio‘s community notification provisions punitive in nature.
{¶13} C.P. also argues that the imposition of notification requirements furthers the traditional penological goals of retribution and deterrence. Again, the United States Supreme Court rejected the argument that the presence of a deterrent purpose renders sanctions criminal in nature. Smith at 102, citing Hudson v. United States (1997), 522 U.S. 93, 105. The Smith Court also rejected the argument that the Alaska scheme‘s obligations were retributive by noting that “[t]he broad categories * * * and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.” Smith at 102. Again, Ohio Courts have previously rejected C.P.‘s argument. Williams at ¶67-72; Sigler v. State, Richland App. No. 08-CA-79, 2009-Ohio-2010, at ¶73; State v. Byers, Columbiana App. No. 07 CO 39, 2008-Ohio-5051, at ¶41; King at ¶21-22; State v. Candela, Ashtabula App. No. 2008-A-0068, 2009-Ohio-4096, at ¶26. But, See, State v. Garner, Lake App. No. 2008-L-087, 2009-Ohio-4448, at ¶31-34.
{¶14} In addition, C.P. never explains what the foregoing arguments are intended to prove in regard to his argument that S.B. 10 violates substantive due process. Generally, courts have considered whether the restrictions of laws like S.B. 10 are punitive or regulatory in the context of an ex post facto argument or an argument that the restrictions violated the
{¶15} Here, C.P. presumes that the imposition of criminal sanctions in a juvenile proceeding must be a violation of his substantive due process rights. C.P. reasons that “[t]he very purpose of the juvenile code was to avoid treating children as criminals and insulating them from the reputation and answerability of criminals.” C.P.‘s brief at 12. This is C.P.‘s only argument that might distinguish the facts of this case from those in Smith. The mere fact that community notification provisions might conflict with the principles of juvenile law does not establish a violation of due process. To establish such a violation, C.P. would need to demonstrate that he had a fundamental right to not be treated like an adult in this proceeding. At best, C.P. has demonstrated that the juvenile code has some provisions that are in tension with the juvenile code‘s stated purposes. But this is to be expected. Legislatures need to reconcile competing
{¶16} C.P. also cites an opinion of the United States Court of Appeals for the Ninth Circuit. United States v. Juvenile Male (C.A.9, 2009), 581 F.3d 977. In that case, the Ninth Circuit Court of Appeals found that provisions of the federal juvenile code imposed an unconstitutional ex post facto punishment on juveniles. Juvenile Male at 993. However, C.P. raises no argument under the ex post facto clause in the present case. Presuming arguendo, we accept the Ninth Circuit‘s analysis and concluded that the registration requirements imposed against C.P. under S.B. 10 constitute criminal punishment. Nonetheless, this alone fails to demonstrate an unconstitutional denial of either substantive or procedural due process.
{¶17} Accordingly, we overrule C.P.‘s first assignment of error.
B. Equal Protection Clause
{¶18} The
{¶19} Unless the government restriction at issue targets a suspect class or infringes on a fundamental right, we review the restriction merely to ensure that it is rationally related to some governmental interest. Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, at ¶82; Vacco v. Quill (1997), 521 U.S. 793, 799. “The vast weight of authority requires that, when utilizing the ‘rational basis’ test, the courts defer to the legislature on the issue of constitutionality. ‘We do not inquire whether this statute is wise or desirable * * *. * * * Misguided laws may nonetheless be constitutional.‘” Morris v. Savoy (1991), 61 Ohio St.3d 684, 692, quoting James v. Strange (1972), 407 U.S. 128, 133. C.P. concedes that rational basis is the appropriate standard of review. C.P.‘s brief at 17.
{¶20} C.P. argues that “[t]he provisions of S.B. 10 violate the Equal Protection Clauses of both the Ohio and United States Constitutions by treating similarly situated persons in vastly different ways. It subjects some juvenile offenders to mandatory classification and registration while others are subject to discretionary sex offender classification and registration.” C.P.‘s brief at 15. C.P. raises three different distinctions that he argues are not rationally related to any legitimate goal.
{¶21} First, juveniles who were fourteen or fifteen years old at the time of their offense are subject to discretionary classification. See In re J.M., Pike App. No. 08CA782, 2009-Ohio-4574, at ¶68-72;
{¶22} Second, a juvenile who is fourteen years old or older at the time of the offense may be subject to classification and registration, but a juvenile younger than fourteen at the time of the offense is not subject to classification or registration at all. See
{¶23} Third, a juvenile who is fourteen years old or older at the time of the offense and is designated a serious youthful offender is automatically subject to the public registry so long as the offense is within an enumerated list.
{¶24} However, in examining these provisions, we find that the general assembly has enacted provisions that are more likely to impose registration and public registry requirements on offenders who are older or who have previously been adjudicated delinquent for committing sexually oriented offenses. The purpose of the notification and public registry provisions is to protect the public. See State v. Cook, 83 Ohio St.3d 404, 413, 1998-Ohio-291.
{¶25} C.P. contends that “these classifications are based on age and, in only some cases, prior offense. Under the rational basis review, these classifications cannot survive. * * * There is simply no evidence at all that a sixteen-year-old offender (mandatory) is more likely to re-offend than a fifteen-year-old offender (discretionary).” C.P.‘s brief at 17-18. However, as we noted above, validly enacted statutes are
{¶26} C.P. also cites Roper v. Simmons (2005), 543 U.S. 551. We do not find this case persuasive as it deals with the question of whether applying the death penalty to juveniles violates the
{¶27} Finally, C.P. cites statistical studies to demonstrate that the recidivist rates of juvenile sex offenders are relatively low. Even if we accept this as true, nonetheless this does not demonstrate that S.B. 10‘s provisions related to the classification and notification of juvenile offenders violates the Equal Protection Clauses of the Ohio or United States Constitutions. C.P. contends that if the legislature were really concerned with recidivism and protecting the public then the legislature would have enacted a notification regime for juveniles who are adjudicated delinquent for theft offenses. However, the legislature may have concluded that the harm of a juvenile reoffending by means of a theft offense is not as great as the harm of a juvenile reoffending by means of a sexually oriented offense. In any event, as we noted above, when reviewing a
{¶28} Accordingly, we overrule C.P.‘s second assignment of error.
C. Eighth Amendment
{¶29} C.P. next contends that the imposition of S.B. 10‘s classification and notification scheme violates his Eighth Amendment rights. The
{¶30} Accordingly, we overrule C.P.‘s third assignment of error.
III.
{¶32} “‘In Ohio, a properly licensed attorney is presumed competent and the appellant bears the burden to establish counsel‘s ineffectiveness.‘” State v. Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶20, quoting State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473; State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, cert. den. Hamblin v. Ohio (1988) 488 U.S. 975. To secure reversal for the ineffective assistance of counsel, one must show two things: (1) “that counsel‘s performance was deficient * * * ” which “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
{¶33} In reviewing the performance of trial counsel, an appellate court must bear in mind that it should “‘ordinarily refrain from second-guessing strategic decisions counsel make[s] at trial, even where counsel‘s trial strategy was questionable.‘” State v. Rinehart, Ross App. No. 07CA2983, 2008-Ohio-5770, at ¶50, quoting State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, at ¶152.
{¶34} Here, we have rejected all of C.P.‘s arguments that purport to demonstrate that S.B. 10 is unconstitutional. We find that had C.P.‘s trial counsel raised those arguments, the trial court should have rejected them anyway. As such, C.P. cannot demonstrate that his counsel‘s performance was deficient under the first prong of the Strickland test.
{¶35} Accordingly, we overrule C.P.‘s fourth assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED, and Appellant pay the 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 Athens County Court of Common Pleas 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. Exceptions.
McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion
For the Court
BY:
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.