In Re G.E.S., 24079 (8-13-2008)
{¶ 1} Appellant, G.E.S., appeals from the order of the Summit County Court of Common Pleas, Juvenile Division, classifying him as a Tier III sexual offender and ordering him to comply with the various registration duties applicable to that classification. This Court affirms.
I
{¶ 2} G.E.S. was adjudicated a delinquent pursuant to his committing one count of sexual battery, as defined in
{¶ 3} On February 12, 2008, the trial court denied G.E.S.‘s motion challenging AWA‘s constitutionality. On February 13, 2008, G.E.S. filed his notice of appeal in this Court. G.E.S.‘s appeal as to his AWA classification is now before this Court and presents four assignments of error for our review. For ease of analysis, we rearrange several of the assignments of error.
II
Assignment of Error Number Two
“THE TRIAL COURT ERRED TO THE PREJUDICE OF [G.E.S] BY APPLYING SENATE BILL 10, OHIO‘S [AWA], OVER [G.E.S.]‘S OBJECTIONS, AND CLASSIFYING [G.E.S] AS A TIER III SEX OFFENDER[.]”
{¶ 4} In his second assignment of error, G.E.S. argues that the trial court erred in classifying him pursuant to AWA because AWA is unconstitutional. G.E.S. raises the following four specific challenges: (1) AWA violates Ohio‘s prohibition on retroactive laws pursuant to
{¶ 5} Since legislative enactments enjoy a strong presumption of constitutionality, In re Farris (Oct. 18, 2000), 9th Dist. No. 20102, at *2, citing State v. Cook (1998), 83 Ohio St.3d 404, 409, we cannot declare a statute unconstitutional until a challenging party demonstrates, beyond a reasonable doubt, that the statute and cited constitutional provisions are incompatible. Farris at *2, citing Cook, 83 Ohio St.3d at 409. We review such a constitutional challenge de novo. Medina v. Szwec, 9th Dist. Nos. 03CA0068-M, 03CA0070-M, 03CA0071-M 03CA0073-M, 2004-Ohio-2245, at ¶ 4.
Retroactive Clause Challenge
{¶ 6} Recently, the Ohio Supreme Court noted that two provisions of Ohio law limit the retroactive application of statutes. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, at ¶ 7. The first is that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.”
{¶ 7} Based on our review of AW A, we conclude that the Legislature intended the statute to apply retroactively with regard to children adjudicated as delinquent.
“If a child is adjudicated a delinquent child for committing a sexually oriented offense * * *, if the child is fourteen years of age or older at the time of committing the offense, and if the child committed the offense on or after January 1, 2002, both of the following apply:
“(A) Sections
2152.82 to2152.86 and Chapter2950. of the Revised Code apply to the child and the adjudication.“(B) In addition to any order of disposition it makes of the child under this chapter, the court may make any determination, adjudication, or order authorized under sections
2152.82 to2152.86 and Chapter2950. of the Revised Code and shall make any determination, adjudication, or order required under those sections and that chapter.”
This language expressly makes AWA applicable to offenses committed before AWA‘s enactment on January 1, 2008.
{¶ 8} Moreover, other provisions of AWA demonstrate the General Assembly‘s intention to apply the Act retroactively. For example,
{¶ 9} Accordingly, the current version of
{¶ 10} The next issue we must address is whether AW A, as it pertains to juveniles adjudicated as delinquent, is substantive or remedial in nature. See Hyle at ¶ 7. The retroactive application of a substantive statute offends the Ohio Constitution while the retroactive application of a remedial statute does not. Id. In Cook, the Ohio Supreme Court explained the distinction as follows:
“A statute is `substantive’ if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligation, or liabilities as to a past transaction, or creates a new right. Conversely, remedial laws are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right. A purely remedial statute does not violate Section
28, Article II of the Ohio Constitution, even if applied retroactively.” (Internal citations omitted.) Cook, 83 Ohio St.3d at 411.
The Supreme Court analyzed the constitutionality of the former R.C. Chapter
{¶ 11} G.E.S. argues that AWA violates the Retroactivity Clause because it imposes an affirmative duty to register with the sheriff upon him; it imposes a felony as a penalty should he
{¶ 12} As to G.E.S.‘s arguments that AWA unconstitutionally imposes an affirmative duty to register with the sheriff upon him and a corresponding penalty for failure to do so, we find that the Supreme Court‘s decision in Cook resolves these issues. Both the duty to personally register and the corresponding penalty for failing to do so existed in pre-AWA Chapter 2950. In reviewing that law, the Supreme Court refused to hold that a change in the frequency or duration of a sex offender‘s reporting requirements transformed Chapter 2950 from a remedial statute to a substantive one. Cook, 83 Ohio St.3d at 412. Rather, the Court found that “the registration and address verification provisions of R.C. Chapter
{¶ 13} G.E.S. fails to explain how the foregoing pre-AWA provisions differ from AWA‘s provisions such that Cook‘s logic no longer applies. See App. R. 16(A)(7). While the frequency and duration of AWA‘s registration and verification requirements are stricter than the prior law in certain instances, these requirements are still merely procedural at heart. See Cook, 83 Ohio St.3d at 411, citing Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 107-08 (noting that laws relating to procedures are generally remedial in nature despite the occasional substantive effect).
{¶ 14} Since registration itself does not per se offend the Retroactivity Clause, we next consider whether the content of the required registration exceeds constitutional bounds. AWA
{¶ 15} Under AW A, a delinquent child classified as a Tier III offender must additionally provide: copies of travel and immigration documents; any aliases; the child‘s social security number, date of birth, and any alternate social security numbers or dates of birth; a statement that the child is in the custody of the department of youth services, if the child registers before his confinement; additional employment information such as the general area where the child is or will be employed; additional vehicle information such as any vehicles the child operates as part of his employment, any vehicles regularly available to him, a description of where each vehicle is “habitually parked, stored, docked, or otherwise kept[,]” and a photograph of each vehicle if the bureau of identification and investigation requires it; any commercial driver‘s license number or state identification card number; a DNA specimen, the name of the sexually oriented offense committed, and a certified copy of the text of that offense, if the child committed a sexually oriented offense in another state or court; each professional and occupational license, permit, or registration of the child; any email addresses, internet identifiers, or telephone numbers registered to or used by the child; and any other information required by the bureau of criminal identification and investigation.
{¶ 16} A remedial law may have some substantive effect without altering its overarching remedial purpose. Cook, 83 Ohio St.3d at 411, citing Van Fossen, 36 Ohio St.3d at 107-08. Accordingly, despite the notable increase in disclosures required by a child sex offender under AWA, we do not find that quantum increase unconstitutional. It does not change AWA from a remedial to a substantive law. It is significant to our analysis that the additional disclosures required by AWA enable law enforcement officials to protect the public without making such information public. See
{¶ 17} Moreover, in Cook, the Supreme Court noted the following:
“[A]n allegation that government dissemination of information or government defamation has caused damage to reputation, even with all attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right; infringement of more `tangible interests’ must be alleged as well. Further, [t]he harsh consequences [of] classification * * * come not as a direct result of the sexual offender law, but instead as a direct societal consequence of [the juvenile‘s] past actions.” (Internal citations and quotations omittedj Cook, 83 Ohio St.3d at 413.
While we recognize that AWA has a significant impact upon the lives of sex offenders, that impact does not offend Ohio‘s prohibition on retroactive laws. Public safety is the driving force behind AWA. See
Ex Post Facto Challenge
{¶ 18}
{¶ 19} In assessing legislative intent, this Court first must look to see if the legislature “indicated either expressly or impliedly a preference for one label or the other.” Id. at 93, quoting Hudson v. U.S. (1997), 522 U.S. 93, 99. The General Assembly did not include any reference to punishment in its public policy declaration. See
“[I]t is the general assembly‘s intent to protect the safety and general welfare of the people of this state. The general assembly further declares that it is the policy of this state to require the exchange in accordance with this chapter of relevant information about sex offenders and child-victim offenders among public agencies and officials and to authorize the release in accordance with this chapter of necessary and relevant information about sex offenders and child-victim offenders to members of the general public as a means of assuring public protection and that the exchange or release of that information is not punitive.”
R.C. 2950.02(B) .
Accordingly, the legislature expressly indicated a preference for a civil and non-punitive statutory scheme. See Doe, 538 U.S. at 92.
{¶ 20} G.E.S. argues that the legislature intended AWA to be punitive (despite the non-punitive language in
{¶ 21} In Doe, the United States Supreme Court analyzed Alaska‘s Sex Offender Registration Act (“SORA“). The Alaska Legislature also placed SORA‘s registration provisions in the criminal procedure section of its code. Id. at 94. In determining that SORA‘s placement was not dispositive of the Alaska Legislature‘s intent, the Supreme Court noted that “[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” Id. The Supreme Court further noted that Alaska‘s criminal procedure Title contained many provisions, which were unrelated to criminal punishment. Id. at 95 (describing laws in the criminal code that provided a procedure for the disposition of recovered and seized property, the protection of victims and witnesses, the governance of civil post-conviction actions, and other non-punitive provisions related to criminal administration).
{¶ 22} Based on the Supreme Court‘s decision in Doe, we find that AWA‘s placement in Title 29 does not establish the legislature‘s intent to make AWA punitive. Title 29 also contains numerous provisions, which are unrelated to criminal punishment. See id;
{¶ 23} As to G.E.S.‘s argument that AWA‘s criminalization of an offender‘s failure to register or verify his registration shows that AWA is punitive, we note that we have already determined that these provisions do not impact AWA‘s remedial nature. The pre-AWA statutory scheme also criminalized an offender‘s failure to comply with the registration and verification requirements. See former
{¶ 24} Lastly, G.E.S. argues that AWA demonstrates the legislature‘s punitive intent because, unlike pre-AWA law, AWA is not narrowly tailored. G.E.S. avers that the Supreme Court upheld the pre-AWA statutory scheme in Cook because pre-AWA‘s provisions were directly tied to an offender‘s ongoing threat in the community. He argues that AWA no longer embodies this narrow focus because it now applies classifications and registration requirements based solely on the underlying offense, rather than on a demonstrated risk of recidivism by a
{¶ 25} The Ohio Supreme Court has concluded that the General Assembly‘s intent when
{¶ 26} Under AWA, delinquent children receive multiple opportunities for reclassification. A delinquent child‘s classification must be reassessed upon the completion of his disposition.
{¶ 27} We next must consider whether AWA has a punitive effect such that its effect negates the legislature‘s intent. Id. “Only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” (Internal quotations omitted). Id., quoting Hudson, 522 U.S. at 100, quoting Ward, 448 U.S. at 249. Since the determination of “whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws is a `matter of degree‘[,]” the United States Supreme Court has “fashioned useful guideposts for determining whether a statute is punitive.” Cook, 83 Ohio St.3d at 418, citing Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144. The guideposts are as follows:
“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned[.]” (Footnotes omitted.) Kennedy, 372 U.S. at 168-69.
While useful, the Mendoza-Martinez factors are “neither exhaustive nor dispositive[.]” Doe, 538 U.S. at 97, quoting Ward, 448 U.S. at 249.
{¶ 28} G.E.S. argues that AWA subjects him to unreasonable public shame and humiliation and places significant restraints on his liberty. He argues that AWA‘s “obligations and burdens” apply regardless of whether they are necessary and impose “substantial and intrusive registration requirements” that were not in effect at the time that he committed his crime. Accordingly, he argues that the overall effect of AWA transforms the statutory scheme into a punitive, rather than a non-punitive one. We disagree.
{¶ 29} In assessing the affirmative disability or restraint factor found in Kennedy, the United States Supreme Court determined that while an offender‘s underlying conviction might
{¶ 30} As with the statutory schemes in Doe and Cook, AWA does not impose any unconstitutional disabilities or restraints upon delinquent children who are classified as sexually oriented offenders. Delinquent children must provide and continually update certain required information, but AWA does not restrain them or otherwise forbid them from engaging in activities. Certainly, delinquent children may feel humiliated or ostracized as a result of AWA‘s reporting requirements, but freedom from humiliation and other disagreeable consequences is not a constitutional right. Such humiliation or ostracism may flow naturally from an underlying conviction (including convictions for non-sexually oriented offenses) regardless of AWA‘s applicability. We do not ignore the potential impact of AWA, but “whether a sanction constitutes punishment is not determined from the defendant‘s perspective, as even remedial sanctions carry the sting of punishment.” (Internal quotations omitted.) Id., quoting Dept. of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. 767, 777, fn. 14, quoting U.S. v. Halper (1989), 490 U.S. 435, 447, overruled on other grounds, Hudson v. U.S. (1989), 490 U.S. 435,
{¶ 31} When reviewing the historical nature of pre-AWA law, the Ohio Supreme Court noted that “[r]egistration has long been a valid regulatory technique with a remedial purpose.” Cook, 83 Ohio St.3d at 418. The Court further noted that historically the “`dissemination of such information in and of itself * * * has never been regarded as punishment when done in furtherance of a legitimate governmental interest.‘” Id. at 419, quoting E.B. v. Verniero (C.A.3, 1997), 119 F.3d 1077, 1099-1100. The United States Supreme Court echoed this logic in Doe. Doe, 538 U.S. at 98 (“Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.“). Doe rejected the argument that SORA‘s registration and notification provisions resembled traditional colonial shaming punishments, which were publicly displayed for the purpose of ridiculing the offender rather than informing the public. Id. at 98-99. The Supreme Court noted that not even SORA‘s Internet notification provision supported the contention that SORA unconstitutionally subjected offenders to public shaming. Id. at 99. While the “Internet is greater than anything which could have been designed in colonial times[,] * * * [t]he purpose and the principal effect of notification are * * * not to humiliate the offender.” Id. “Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of valid regulation.” Id.
{¶ 32} We do not find that AWA‘s provisions vary so greatly from those in Cook and Doe that the provisions would have been historically regarded as criminal punishment. See Kennedy, 372 U.S. at 168-69. As previously discussed, AWA does not require that all juvenile sexual offenders comply with its registration and notification provisions. AWA does not permit or mandate that all private information be publicly available. Moreover, there is no evidence that
{¶ 33} As to whether AWA requires a finding of scienter, we find that the result in Cook controls our analysis. In Cook, the Ohio Supreme Court held the following:
“There is no scienter requirement indicated in
R.C. 2950.04 . The General Assembly requires that [delinquent children] `shall register’ pursuant toR.C. 2950.04(A) . The act of failing to register alone, without more, is sufficient to trigger criminal punishment provided inR.C. 2950.99 . Accordingly, we find thatR.C. 2950.04 does not require scienter.” Cook, 83 Ohio St.3d at 419-20.
AWA also lacks a scienter requirement and imposes a criminal punishment merely upon a delinquent child‘s failure to register.
{¶ 34} Cook also controls our determination of the fifth Mendoza-Martinez factor regarding whether the targeted behavior was already a crime under the former law. Cook provides as follows:
“Even prior to the promulgation of the current version of R.C. Chapter
2950 , failure to register was a punishable offense. Thus, any such punishment flows from a failure to register, a new violation of the statute, not from a past sex offense. In other words, the punishment is not applied retroactively for an act that was committed previously, but for a violation of law committed subsequent to the enactment of the law.” (Internal citations omitted.) Cook, 83 Ohio St.3d at 420-21.
As in Cook, the pre-AWA scheme made failing to register a punishable offense. “Accordingly, the behavior to which R.C. Chapter
{¶ 35} We next consider whether AWA promotes the traditional aims of punishment-retribution and deterrence. See Kennedy, 372 U.S. at 168-69. “Any number of governmental programs might deter crime without imposing punishment.” Doe, 538 U.S. at 102. Furthermore, “even if one assumes that [a statute] would have some deterrent effect, deterrence alone is insufficient to make a statute punitive.” Cook, 83 Ohio St.3d at 420. In applying these principles, the Ohio Supreme Court refused to find that the pre-AWA statutory scheme promoted traditional aims of punishment and deterrence. The scheme was not retributive in nature because it required offenders to comply for informational purposes, not merely to “seek vengeance for vengeance‘s sake[.]” Id. Furthermore, the Court doubted that the scheme had a deterrent effect because “[a]rguably, sexual predators are not deterred even by the threat of incarceration.” Id. Our review of AWA convinces us that Cook applies to the vast majority of its provisions, which are targeted to maximize the flow of information to the public. AWA attempts to “solve a problem” by keeping the public well informed of possible sources of danger. See id. at 420, quoting Artway v. New Jersey Atty. Gen. (C.A.3, 1996), 81 F.3d 1235, 1255. We cannot say that any of the additions to the pre-AWA statutory scheme, which are comprised mainly of additional demands for information from offenders, transform the scheme into one that has either a noticeable retributive or deterrent effect.
{¶ 36} G.E.S. argues to the contrary and asserts that AWA is punitive because it classifies offenders by offense rather than likelihood to reoffend. Initially, we note that the United States Supreme Court considered this same issue in Doe. SORA also classified offenders by offense “without regard to their future dangerousness.” Doe, 538 U.S. at 103. In upholding this structuring, the Supreme Court said:
“The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular
regulatory consequences. * * * The State‘s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.” Id. at 103-04.
{¶ 37} Moreover, G.E.S. misinterprets AWA. AWA vests a juvenile court with full discretion to determine whether to classify a delinquent child as a Tier I, Tier II, or Tier III offender. See
“(3) A sex offender who is adjudicated a delinquent child for committing or has been adjudicated a delinquent child for committing any sexually oriented offense and who a juvenile court, pursuant to section
2152.82 ,2152.83 ,2152.84 , or2152.85 of the Revised Code, classifies a tier I sex offender/child-victim offender relative to the offense.” (Emphasis added.)
{¶ 38} The next consideration is whether AWA serves any alternate non-punitive purpose. See Kennedy, 372 U.S. at 168-69. The Ohio Supreme Court determined in Cook that public safety is a permissible alternate purpose. Cook, 83 Ohio St.3d at 421. The Court held that “protection of the public is a paramount governmental function enforced through the police power * * * [and that] [t]he fact that released sex offenders have a high rate of recidivism demands that steps be taken to protect members of the public against those most likely to reoffend.” Id. While Cook analyzed public safety in the context of a “high rate of recidivism,” it does not necessarily follow that public safety is an impermissible purpose absent evidence of recidivism. Before the enactment of AWA, the Ohio Supreme Court favored presentation of expert testimony on the statutory requirement regarding the likelihood of recidivism. See State v. Eppinger (2001), 91 Ohio St.3d 158, 163. However, reliable expert testimony meeting the criteria of Daubert remains an elusive, and we suggest a costly, goal.3 The General Assembly has, in AWA, abandoned that laudable, but not yet attainable requirement for adult sexual offenders. Yet, with regard to juvenile offenders AWA permits consideration of recidivism in addition to the alternate remedial purpose of public safety. Moreover, in our view, AWA
{¶ 39} The last Mendoza-Martinez factor questions the excessiveness of the statutory scheme at issue in light of its alternate purpose. Kennedy, 372 U.S. at 168-69. In upholding the pre-AWA statutory scheme, the Ohio Supreme Court focused on the scheme‘s narrowness. Cook, 83 Ohio St.3d at 421-23. The Court reasoned that the scheme imposed the harshest registration and notification requirements upon the most probable recidivists and placed the vast majority of information solely in the hands of law enforcement officials. Id. at 421-22. Further, the Court noted that the scheme provided a mechanism for offenders to submit evidence and petition to have their classification label and its obligations removed. Id. The Court thus concluded that the pre-AWA statutory scheme was not excessive in light of its protective purpose. Id. at 423.
{¶ 40} With regard to delinquent children adjudicated as sexually oriented offenders, AWA shares many of the same attributes as the pre-AWA statutory scheme. As previously noted, juvenile courts have the discretion to determine which Tier classification should apply to delinquent children and may account for factors such as dangerousness in their classifications. See
{¶ 41} In sum, this Court finds that AWA does not have an unconstitutional punitive intent/purpose or effect with respect to delinquent children adjudicated as sexually oriented offenders. See Doe, 538 U.S. at 92 (noting that to comport with the Ex Post Facto Clause, a retroactive statutory scheme must be civil and non-punitive in light of both the legislature‘s intent in enacting it and its effect upon enactment). G.E.S.‘s argument that AWA violates the Ex Post Facto Clause lacks merit.
Separation of Powers Challenge
{¶ 42} G.E.S. argues that AWA violates the separation of powers doctrine and “unconstitutionally strip[s]” the judiciary of its discretion because it classifies delinquent children based solely on their offenses. He argues that AWA essentially gives the legislature the power to classify delinquent children because the Act removes the judiciary‘s authority to consider any factors other than the delinquent child‘s offense when conducting a classification. We have already determined, however, that AWA gives juvenile courts full discretion in determining what Tier level to assign delinquent children and does not prohibit those courts from considering the likelihood of the child to reoffend or any other relevant factor. See
Void-for-Vagueness Challenge
{¶ 43} To prove that a statute is unconstitutionally vague, a party must demonstrate that the statute is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” State v. Schneider, 9th Dist. No. 06CA0072-M, 2007-Ohio-2553, at ¶ 6, quoting Coates v. Cincinnati (1971), 402 U.S. 611, 614. The challenger bears the burden of showing that upon examination of the statute a person of ordinary intelligence would be unable to understand what the law requires of him. Schneider at ¶ 6, citing State v. Anderson (1991), 57 Ohio St.3d 168, 171.
{¶ 44} G.E.S. argues that AWA and
{¶ 45} We agree with G.E.S. that AWA does not contain an express list of factors that the juvenile court must consider in classifying a delinquent child. We also agree that AWA gives juvenile courts a wide range of discretion in choosing which classification level to assign to delinquent children. We do not agree, however, that these truisms make AWA unconstitutionally vague. Although a juvenile court has the discretion to choose which classification applies to a delinquent child, the court‘s decision still must be based on some
{¶ 46} Tier level designations for adult offenders are strictly, and clearly, broken down by category of offense. See
{¶ 47} G.E.S. criticizes AWA on the one hand for being too dogmatic and on the other for not being rigid enough. We reject such a polarized analysis. AWA properly endorses flexibility, an approach more suitable to rehabilitation of a delinquent child and one not inconsistent with protection of the public. See
{¶ 48} We reject G.E.S.‘s constitutional challenges and find that the juvenile court did not err in classifying G.E.S. as a Tier III sexually oriented offender for the offense of sexual battery under the circumstance more fully set forth in In re G.E.S., 9th Dist. No. 23963, 2008 Ohio-2671. Consequently, G.E.S.‘s second assignment of error is overruled.
Assignment of Error Number Three
“THE TRIAL COURT ERRED TO THE PREJUDICE OF [G.E.S] BY OVERRULING [G.E.S.]‘S MOTION TO FIND AMENDMENT TO ORC SECTIONS
2152.01 , ET SEQ. AND 2950.01, ET SEQ. UNCONSTITUTIONAL[.]”
{¶ 49} In his third assignment of error, G.E.S. argues that the trial court erred in denying his oral objection and written motion based on the unconstitutionality of AWA. As we have
Assignment of Error Number One
“THE TRIAL COURT ERRED BY CLASSIFYING [G.E.S.] AS A TIER III SEX OFFENDER PURSUANT TO OHIO‘S [AWA] AND ORDERING HIM TO COMPLY WITH REGISTRATION DUTIES PURSUANT TO R.C.
2950.041 ,2950.05 AND 2950.06[.]”
{¶ 50} In his first assignment of error, G.E.S. argues that the trial court erred in ordering him to comply with the registration duties contained in
{¶ 51} The term “sex offender” applies to a child whom the court has adjudicated delinquent for committing a sexually oriented offense.
{¶ 52} If the juvenile court commits a delinquent child to a secure facility without classifying the child, then at the time of the child‘s release the court shall issue “an order that classifies the child a juvenile offender registrant and specifies that the child has a duty to comply
“(a) The act for which the child * * * was 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 sixteen or seventeen 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[.]”R.C. 2152.83(A)(1) .4
{¶ 53} G.E.S.‘s delinquency adjudication pertained to his committing sexual battery, a sexually oriented offense. See
{¶ 54} At G.E.S.‘s classification hearing, the trial court indicated that it was ordering G.E.S. to “comply with the registration duties imposed upon him by the Revised Code, specifically 2950.04, 2950.041, 2950.05, and 2950.06.”5 The court, however, specifically classified G.E.S. as a sex offender. The court never referred to G.E.S. as a child-victim offender, or to his crime as a “child-victim oriented offense.” Furthermore, the court‘s January 14, 2008 journal entry provides that G.E.S. was “adjudicated delinquent for having committed a sexually oriented offense” (Emphasis added.). Because
{¶ 55} Next, G.E.S. argues that
Assignment of Error Number Four
“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT CLASSIFIED [G.E.S] PURSUANT TO OHIO‘S AWA AND ORDERED HIM TO COMPLY WITH THE REPORTING REQUIREMENTS SET FORTH THEREIN BECAUSE APPLYING OHIO‘S AWA TO A JUVENILE ADJUDICATED DELINQUENT FOR COMMITTING A SEXUALLY ORIENTED OFFENSE VIOLATES THE JUVENILE‘S RIGHT TO EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ANDSECTION 2, ARTICLE I OF THE OHIO CONSTITUTION [.]”
{¶ 56} In his final assignment of error, G.E.S. argues that the trial court committed plain error in classifying him as a Tier III sex offender because AWA violates the equal protection clause. Specifically, he argues that AWA subjects him to the same reporting requirements and penalties for failing to comply with those reporting requirements as an adult without affording him the same due process rights, such as a jury trial on his underlying offense. We disagree.
{¶ 57} G.E.S. concedes that his counsel failed to raise this argument in the trial court. Accordingly, he relies on the doctrine of plain error to assert this argument on appeal. For plain error to exist, “`(1) there must be an error, i.e., a deviation from a legal rule, (2) the error must be plain, which means that it must be an obvious defect in the trial proceedings, and (3) the error must have affected substantial rights, which means that the trial court‘s error must have affected
{¶ 58} The Equal Protection Clause of the
{¶ 59} Contrary to G.E.S.‘s assertion, AWA does not subject him to the same requirements as an adult offender classified as a Tier III sexually oriented offender. As previously noted, AWA gives juvenile courts discretion over whether to apply a Tier III classification to an offender such as G.E.S. A trial court would have no choice, however, to impose a Tier III classification upon an adult offender who committed the same crime. See
III
{¶ 60} G.E.S.‘s first, second, and fourth assignments of error are overruled. His third assignment of error is moot. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to Appellant.