In Re Carr, 08 Ca 19 (10-30-2008)
{¶ 1} Appellant, Rodney Carr, appeals from the October 29, 2007, Judgment Entry of the Licking County Court of Common Pleas, Juvenile Division, adjudicating him a juvenile sex offender registrant.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On September 29, 2004, a complaint was filed in the Licking County Court of Common Pleas, Juvenile Division, alleging that appellant Rodney Carr, D.O.B. 8-7-89, was a delinquent child. The complaint alleged that appellant had committed two counts of rape in violation of
{¶ 3} On October 6, 2004, appellant entered a plea of denial to all of the counts in the complaint. Thereafter, on November 18, 2004, appellant entered an admission to one count of rape and one count of gross sexual imposition. The remaining counts were dismissed upon oral motion of the prosecution. As memorialized in the Judgment Entry filed on November 18, 2004, the final disposition was continued for a period of not more than 45 to 60 days. The trial court, in its Judgment Entry, ordered the probation department to conduct a pre-dispositional report and juvenile sex offender assessment and ordered appellant to submit to a mental evaluation.
{¶ 4} A dispositional hearing was held on January 14, 2005. At the January 14, 2005, hearing, the trial court, with respect to the count of rape, ordered that appellant be committed to the Ohio Department of Youth Services (DYS) for a minimum of one year
{¶ 5} A probation review hearing was held on April 28, 2005. The trial court, pursuant to a Judgment Entry filed on April 28, 2005, ordered appellant released from house arrest and ordered that appellant continue on probation or community control.
{¶ 6} On August 28, 2007, a motion was filed alleging that appellant had violated the terms and conditions of his probation. A hearing was held on September 27, 2007. At the hearing, appellant admitted to violating the terms and conditions of his probation. Pursuant to a Judgment Entry filed on September 27, 2007, the trial court found appellant to be a probation violator and ordered that final disposition of appellant‘s case be continued for a period of not more than 30 to 45 days.
{¶ 7} Following a hearing held on October 29, 2007, appellant was adjudicated delinquent of a probation violation. The trial court, at the hearing, classified appellant as a juvenile sex offender registrant and committed appellant to DYS for a minimum period of one year and a maximum term of up to his 21st birthday.
{¶ 8} Appellant now raises the following assignments of error on appeal:
{¶ 9} “I. THE LICKING COUNTY JUVENILE COURT ERRED WHEN IT CLASSIFIED RODNEY C. AS A JUVENILE SEX OFFENDER REGISTRANT FOLLOWING A PROBATION VIOLATION, WHEN THE COURT FAILED TO CLASSIFY RODNEY AS A REGISTRANT APPROXIMATELY THREE YEARS EARLIER, WHEN HE WAS FIRST ADJUDICATED DELINQUENT OF A SEXUALLY ORIENTED OFFENSE AND PUT ON PROBATION.
{¶ 10} “II. THE LICKING COUNTY JUVENILE COURT ERRED WHEN IT CLASSIFIED RODNEY C. AS A JUVENILE OFFENDER REGISTRANT, BECAUSE AS OF JULY 1, 2007, THERE EXISTED NO STATUTORY AUTHORITY FOR THE JUVENILE COURT TO CONDUCT A SEX OFFENDER CLASSIFICATION HEARING, OR ANY OTHER HEARING GOVERNED BY REVISED CODE SECTION 2152.
{¶ 11} “III. RODNEY C. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO EDUCATE HIMSELF ABOUT RELEVANT JUVENILE OFFENDER CLASSIFICATION PROCEDURES AND FAILED TO OBJECT TO THE COURT‘S CLASSIFICATION OF RODNEY AS A JUVENILE SEX OFFENDER REGISTRANT, WHEN THE COURT WAS WITHOUT AUTHORITY TO CONDUCT A CLASSIFICATION HEARING, AND WHEN RODNEY COULD HAVE BEEN LAWFULLY CLASSIFIED ONLY AT HIS ORIGINAL DISPOSITION.”
I
{¶ 12} Appellant, in his first assignment of error, argues that the trial court erred when it classified him as a juvenile sex offender registrant following a probation violation hearing when the trial court failed to classify him as a registrant approximately three
{¶ 13} Revised Code Sections
{¶ 14} Appellant was fourteen years old at the time of the offenses and was a first time offender.
{¶ 15} Appellant, in the case sub judice, argues that the trial court had no jurisdiction to classify him as a juvenile sex offender registrant in this case because it neither classified him as such, nor committed him to a secure facility, at disposition. Appellant notes that “[s]ince Rodney was not sent to a secure facility at disposition, if the court was going to classify Rodney as a juvenile sex offender registrant at all, it had to do so when it placed him on probation.”
{¶ 16} However, as noted by this Court in In re McAllister, Stark App. No. 2006CA00073, 2006-Ohio-5554: “As we stated in In the Matter of: Lucas A. Callahan, Ashland App. No. 04COA064, 2005-Ohio-735, ¶ 11, `We conclude the General Assembly‘s use of the word `may’ and the use of the conjunction `or’ triggers the trial court‘s discretion regarding when to make a sexual predator determination.’ Therefore, the trial court has two times when it may consider classification under
{¶ 17} “The use of the word `may’ in the statute provides a trial court with discretion on whether to classify a juvenile and at what times to classify the juvenile. Once the two cited time frames have lapsed, the trial court‘s jurisdiction as to classification is terminated.” Id at paragraphs 9-10.2
{¶ 18}
{¶ 19} Furthermore, although not a juvenile case, we find State v. Bellman, 86 Ohio St.3d 208, 1999-Ohio-95, 714 N.E.2d 381 to be instructive. In Bellman, the appellant argued that the trial court did not have jurisdiction to classify him as a sexually oriented offender because it conducted the sexual offender status hearing after his sentencing, in violation of
{¶ 20} The Ohio Supreme Court, in Bellman, held the statutory requirement that the determination hearing be conducted prior to sentencing is directory rather than mandatory in nature. Specifically, the Court stated: “* * * [T]he language of
{¶ 21} We find that the classification times set out in
{¶ 22} In sum, we find that the trial court did classify appellant as a juvenile sex offender registrant at the time of disposition, and the trial court had discretion to make such a determination at disposition or at release from a secure facility.
{¶ 23} Appellant‘s first assignment of error is, therefore, overruled.
II
{¶ 24} Appellant, in his second assignment of error, argues that the trial court erred in classifying him as a juvenile sex offender registrant on October 29, 2007, when the applicable sections providing for and governing such hearings were repealed on July 1, 2007.
{¶ 25} Appellant argues that the former versions of R.C.
{¶ 26} First, we find that appellant‘s interpretation is not supported by the plain language of Senate Bill 10. Section 2 of Senate Bill 10 states: “[E]xisting sections * * *
{¶ 27} “[A]lthough Section 4 of Senate Bill 10 makes Sections 1 — 3 effective on July 1, 2007, this does not change the effective date contained in each individual
{¶ 28} Even without the legislature expressly setting forth the repeal and effective dates, we, nonetheless, find appellant‘s argument to be without merit. Appellate courts in this State have consistently found the repealing clause of a statute does not take effect until the other provisions of the repealing act come into operation. See, e.g. State v. Hall (February 5, 1986), Lorain App. No. 3883, 1986 WL 1736, unreported; Ohio Student Loan Ass‘n v. Drinks (April 22, 1986), Franklin App. No. 85AP-1073, 1986 WL 4937, unreported; Arrasmith v. University of Cincinnati (February 16, 1995), Franklin App. No. 94API07-1068, 1995 WL 66393, unreported.
{¶ 29} “Where an act of the General Assembly amends an existing section of the Revised Code * * * postpones the effective date of the amended section for [a time] after the effective date of the act, and repeals the `existing’ section in a standard form of repealing clause used for many years by the General Assembly for the purpose of complying with
{¶ 30} Based upon the foregoing, we find that the trial court had the statutory authority to conduct the juvenile sex offender classification hearing in this case. See also, In re Marcio A., Licking App. No. 2007 CA 00149, 2008-Ohio-4523.3
{¶ 31} Appellant‘s second assignment of error is, therefore, overruled.
III
{¶ 32} Appellant, in his third assignment of error, argues that he received ineffective assistance of trial counsel. We disagree.
{¶ 33} Our standard of review is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel‘s assistance was ineffective; i.e., whether counsel‘s performance fell below an objective standard of reasonable representation and whether counsel violated any of his or her essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel‘s ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing that there is a reasonable probability that but for counsel‘s unprofessional error, the outcome of the trial would have been different. Id. at 141-142. Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343, 693 N.E.2d 267.
{¶ 34} Appellant specifically contends that his trial counsel was ineffective in failing to argue to the trial court that it lacked jurisdiction to classify appellant as a juvenile sex offender registrant because it did not classify him as such at the time of his original disposition (appellant‘s first assignment of error) and because the statutory sections governing the jurisdiction of the juvenile court were repealed as of July 1, 2007, (appellant‘s second assignment of error).
{¶ 35} Based on our disposition of appellant‘s first and second assignments of error, appellant‘s third assignment of error is overruled.
{¶ 36} Accordingly, the judgment of the Licking County Court of Common Pleas, Juvenile Division, is affirmed.
Edwards, J., Wise, P.J., and Delaney, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Court of Common Pleas, Juvenile Division, is affirmed. Costs assessed to appellant.