No. 24239. | Ohio Ct. App. | Nov 12, 2008
{¶ 3} On April 24, 2008, the trial court classified the juvenile as a Tier III sex offender and proceeded to disposition. At disposition, the trial court ordered that H.P. be committed to the Ohio Department of Youth Services ("DYS") for a minimum term of one year to a maximum term to age twenty-one. H.P. timely appeals, raising four assignments of error for review. *2
"THE SUMMIT COUNTY JUVENILE COURT ERRED WHEN IT CLASSIFIED HP. AS A JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT DETERMINATION UPON HIS RELEASE FROM A SECURE FACILITY, IN VIOLATION OF R.C.2152.83 (B)(1)."
{¶ 4} H.P. argues that his classification as a juvenile offender registrant and a Tier III sex offender is void because the juvenile court had no authority to classify him under the circumstances until his release from DYS. This Court agrees.
{¶ 5} R.C.
"(A) The court that adjudicates a child a delinquent child shall issue as part of the dispositional order an order that classifies the child a juvenile offender registrant *** if all of the following apply:
"(1) 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.
"(2) The child was fourteen, fifteen, sixteen, or seventeen years of age at the time of committing the offense.
"(3) The court has determined that the child previously was adjudicated a delinquent child for committing any sexually oriented offense or child-victim oriented offense, regardless of when the prior offense was committed and regardless of the child's age at the time of committing the offense.
"(4) The court is not required to classify the child as both a juvenile offender registrant and a public registry-qualified juvenile offender registrant under section
2152.86 of the Revised Code." (Emphasis added.)
{¶ 6} In this case, H.P. had never before been adjudicated a delinquent child for committing a sexually oriented offense or child-victim offense. Accordingly, the classification provision in R.C.
{¶ 7} R.C.
"(A)(1) The court that adjudicates a child a delinquent child shall issue as part of the dispositional order or, if the court commits the child for the delinquent act to *3 the custody of a secure facility, shall issue at the time of the child's release from the secure facility an order that classifies the child a juvenile offender registrant and specifies that the child has a duty to comply with sections
2950.04 ,2950.041 ,2950.05 , and2950.06 of the Revised Code if all of the following apply:"(a) The act for which the child is or 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 or as both a juvenile offender registrant and a public registry-qualified juvenile offender registrant under section2152.86 of the Revised Code." (Emphasis added.)
{¶ 8} The circumstances of this case indicate that R.C.
{¶ 9} H.P. argues that R.C
{¶ 10} Our research indicates that no other court has addressed this issue since the statute's effective date of January 1, 2008. However, a review of case law relevant to prior similar provisions indicates that the juvenile court only has authority to classify H.P. upon his release from DYS.
{¶ 11} In 2005, the Fifth District overruled a juvenile's assignment of error that the juvenile court erred by classifying him as a sexual predator prior to his treatment in a secure *4
facility in the absence of any prior sexually oriented offenses. In reCallahan, 5th Dist. No. 04COA064,
"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) ***." (Emphasis added.)
In overruling the assignment of error, the Fifth District reasoned, "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." Id at ¶ 11.
{¶ 12} Other courts who have analyzed the issue of a juvenile's classification pursuant to statutory provisions identical or substantially similar to the provision relevant in this case, however, have not recognized the juvenile court's discretion as to when it classifies the offender. The Fourth District sustained a juvenile's assignment of error that the juvenile court lacked the authority to classify him as a sexual predator at disposition because the juvenile court committed him to a secure facility. In re P.B., 4th Dist. No. 07CA3140,
"We recognize that subsection (A)(1) is worded differently than subsection (B)(1). The General Assembly used the word `shall' in subsection (A)(1) rather than the word `may.' Thus, although a juvenile court has discretion as to the type of disposition it makes, the court apparently does not have discretion to determine when the delinquent child can be adjudicated a sexual predator. If a child is committed to DYS, the legislature has decided that such a determination must wait until the child's release. We recognize that courts must follow a statute's *5 plain language, regardless of the wisdom of the particular statutory provision." (Emphasis in the original.) In re P.B. at ¶ 8.
Accordingly, the Fourth District vacated P.B.'s classification.
{¶ 13} The Eighth District addressed the application of R.C.
"[I]f the offender is committed to the custody of a secure facility, an order under this section will be issued at the time of the offender's release, but if the offender is not committed to custody, then the order will be issued at the time of disposition. In this case, appellant was not committed to a secure facility. Therefore, the court could (and properly did) classify appellant as a juvenile sex offender registrant under this section at the time of disposition." Id. at ¶ 13.
{¶ 14} This Court agrees with the interpretation of our sister courts in regard to the application of identical or substantially similar language regarding the timing of H.P.'s classification. The plain language of R.C.
{¶ 15} The State argues that R.C.
{¶ 16} First, R.C.
{¶ 17} Under these circumstances, as the trial court committed H.P. to DYS, i.e., a secure facility, it had no authority to classify the juvenile as a juvenile offender registrant until his release from the secure facility. Accordingly, the juvenile court erred by classifying H.P. as a juvenile offender registrant and Tier III sex offender at disposition. As such, the classification order is void and must be vacated. H.P.'s first assignment of error is sustained. *7
"SENATE BILL 10 VIOLATES A JUVENILE'S RIGHT TO EQUAL PROTECTION UNDER THE LAW AS GUARANTEED BY THEFOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE1 , SECTION2 OF THE OHIO CONSTITUTION."
"THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO HP. AS THE APPLICATION OF SENATE BILL [10] TO HP. VIOLATES HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THEFOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION16 , ARTICLEI OF THE OHIO CONSTITUTION."
{¶ 18} H.P. argues that the trial court's application of Senate Bill 10 regarding classification violates his constitutional rights to equal protection and due process.
{¶ 19} The Ohio Supreme Court has held that "[c]ourts should not decide constitutional issues if the case can be decided without reaching them." Consolo v. Cleveland,
"H.P. WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, SECTIONS10 AND16 , ARTICLEI OF THE OHIO CONSTITUTION." (sic.)
{¶ 20} H.P. argues that his "counsel was ineffective for failing to educate herself (sic) regarding the juvenile offender registration laws[.]" Specifically, H.P. argues that he was *8 prejudiced because the juvenile court classified him at disposition as a Tier III sex offender. This Court finds the argument not well taken.
{¶ 21} In evaluating an ineffective assistance of counsel claim, this Court employs a two step process as described in Strickland v.Washington (1984),
{¶ 22} Based on this Court's resolution of the first assignment of error, the juvenile's classification is void and must be vacated. However, the juvenile court must eventually classify him upon his release from DYS. Because he must ultimately be classified, H.P. has failed to demonstrate prejudice sufficient to establish ineffective assistance of counsel where his only argument was that his classification was premature. The fourth assignment of error is overruled. *9
Judgment reversed, and cause remanded.
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.
*10Costs taxed to Appellee.
MOORE, J., WHITMORE, J., CONCUR.