In re J.M.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 08121170
RELEASED: June 18, 2009
JOURNALIZED:
Robert L. Tobik
Cuyahoga County Public Defender
BY: Jeffrey B. Lazarus
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Joseph M. Cordiano
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
{¶ 1} Defendant-appellant, J.M., appeals the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, that denied his petition contesting the application to him of the new classification and registration requirements of Ohio‘s sex offender statutes.
{¶ 2} The following are the facts as asserted by appellant in his petition. In 2002, the Huron County Court of Common Pleas, Juvenile Division, adjudicated appellant a delinquent child by virtue of committing the crime of rape, a violation of {¶ 3} Upon appellant‘s release from ODYS custody in March 2005, the Huron County juvenile court held a sex offender classification hearing and found appellant to be a habitual sex offender. The court informed him of his registration and verification requirements under the then-existing version of {¶ 5} The notice informed J.M. that as a Tier III juvenile offender he may be eligible for reclassification or declassification under {¶ 6} On January 25, 2008, appellant filed in the Cuyahoga County Court of Common Pleas, Juvenile Division, a petition to contest the application of Senate Bill 10 to him, pursuant to {¶ 7} On June 25, 2008, the juvenile court heard and denied appellant‘s petition. The judge stated that although he was aware of, and agreed with, a common pleas decision finding the retroactive application of the Adam Walsh Act unconstitutional, he was bound by this court‘s decision in State v. Holloman-Cross, Cuyahoga App. No. 90351, 2008-Ohio-2189, which upheld the retroactive application of the Act. {¶ 8} Appellant timely appealed this decision raising eleven errors for review. {¶ 9} “I. The trial court erred and abused its discretion by failing to consider any classification other than Tier III for appellant.” {¶ 11} Appellant‘s first two assignments of error challenge the adequacy of the juvenile court‘s June 25, 2008 hearing and are premised on the fact that, under the new sex offender classification statutes, the juvenile court is granted discretion in classifying juvenile sex offenders. Appellant argues that the juvenile court was required to hold a reclassification hearing and exercise its discretion before he could be classified a Tier III offender. {¶ 12} Senate Bill 10 abolished the prior classifications contained in {¶ 13} Ohio‘s version of the Adam Walsh Act makes provision for a juvenile offender to be re-evaluated, prove their rehabilitation to the court, and have {¶ 14} The record indicates that appellant filed his petition pursuant to {¶ 15} “III. The trial court erred and abused its discretion by failing to relieve appellant of community notification.” {¶ 16} Appellant argues: 1) that the attorney general lacked the authority to impose community notification upon him, and 2) pursuant to {¶ 17} Appellant‘s first argument, premised on alleged constitutional violations, is without merit as explained below. However, appellant‘s second argument has merit. The notification from the attorney general informing appellant of his new Tier III classification, stated: “You are subject to community notification requirements under Ohio Revised Code 2950.11, if you were previously subject to community notification prior to January 1, 2008.” In his petition, appellant asserted that he was not subject to community notification prior to January 1, 2008, and therefore, even if the court found the Adam Walsh Act applied to him, he would not be subjected to community notification. {¶ 18} Recently, in Gildersleeve v. State, Cuyahoga App. No. 91515, 2009-Ohio-2031, this court had the opportunity to review the community notification provisions of S.B. 10 and found them “wrought with confusion.” We stated it “would be nonsensical for a court to hold a hearing to determine whether [previously classified offenders] would have been subject to community notification under the former statute, when it was already determined that they were not subject to community notification under the former statute.” As a result, we held: “For those Tier III offenders who were not subject to {¶ 19} Accordingly, we sustain appellant‘s third assignment of error and find that, although appellant is now classified as a Tier III offender, because he was not subject to community notification under the former statute, he is exempt from community notification under the AWA. {¶ 20} For ease of review, we will address appellant‘s final eight assignments of error together. In these assignments of error, appellant argues that Senate Bill 10 is not civil and remedial, but is punitive in nature and, as a result, violates his constitutional rights. Appellant asserts that the application of Senate Bill 10 violates various constitutional provisions {¶ 21} In State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, the Ohio Supreme Court stated: {¶ 22} “[S]tatutes enjoy a strong presumption of constitutionality. ‘An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.’ State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St.142, 57 Ohio Op. 134, 128 N.E.2d 59, paragraph one of the syllabus. ‘A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality.’ Id. at 147, 57 Ohio Op. at 137, 128 N.E.2d at 63. ‘That presumption of validity of such legislative enactment cannot be overcome unless it appear[s] that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution.’ Xenia v. Schmidt (1920), 101 Ohio St. 437, 130 N.E. 24, paragraph two of the syllabus; State ex rel. Durbin v. Smith (1921), 102 Ohio St. 591, 600, 133 N.E. 457, 460; Dickman, 164 Ohio St. at 147, 57 Ohio Op. at 137, 128 N.E.2d at 63.” Id. at 409. {¶ 23} In the 1998 Cook decision, the court found that Ohio‘s sex offender statutes did not violate the retroactivity clause of the Ohio Constitution or the ex post facto clause of the United States Constitution as applied to previously convicted defendants. In State v. Williams, 88 Ohio St.3d 513, 2000-Ohio-428, the Ohio Supreme Court further held that Ohio‘s sex offender statutes did not violate double jeopardy or equal protection provisions of the United States Constitution. {¶ 24} Most recently, in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, the Ohio Supreme Court addressed the constitutionality of the 2003 version of {¶ 25} The Ohio Supreme Court has yet to rule on the constitutional challenges to Senate Bill 10 currently pending before it. However, in the months since appellant filed his appellate brief, decisions out of this court and other appellate districts have reviewed and rejected the constitutional challenges raised in this appeal. {¶ 26} In State v. Ellis, Cuyahoga App. No. 90844, 2008-Ohio-6283, this court found that The Sex Offender Registration and Notification Act contained in the Adam Walsh Act and incorporated into Ohio law at {¶ 27} Appellant argues that by authorizing the Attorney General‘s Office to reclassify him under the new tier classification, the Ohio legislature impermissibly interfered with the prior judicial adjudication of his sex offender status in violation of the separation of powers doctrine. We disagree. {¶ 28} Senate Bill 10 does not require the attorney general to reopen appellant‘s final court judgment. In 2005, the juvenile court adjudicated appellant a habitual sex offender subject to registration and verification requirements. Senate Bill 10 simply changes the frequency and duration of the registration and verification requirements to which appellant is subject. Additionally, as noted above, under the provisions of Senate Bill 10, appellant can seek a reduction in the registration and verification requirements applicable to him by petitioning the juvenile court to reclassify him. {¶ 29} Other Ohio courts have also rejected appellant‘s contention and have concluded that Senate Bill 10 does not violate the doctrine of separation of powers by abrogating final court judgments. In In re Smith, Allen App. No. 1-07-58, 2008-Ohio-3234, the court reasoned that, “the classification of sex offenders into categories has always been a legislative mandate, not an inherent power of the courts. Slagle v. State, 145 Ohio Misc.2d 98, 884 N.E.2d 109, 2008-Ohio-593. Without the legislature‘s creation of sex offender classifications, no such classification would be warranted. Therefore, with respect to this {¶ 30} We agree with this reasoning and find no violation of the separation of powers doctrine. {¶ 31} Appellant argues generally that Senate Bill 10 is unconstitutional because it imposes adult consequences on a juvenile without affording him the same constitutional rights and procedural safeguards as an adult. However, appellant identifies for this court certain instances when a juvenile is afforded the same constitutional rights and protections as an adult. One such instance is during serious youthful offender proceedings. Although appellant does not include the record from the Huron County juvenile proceedings as part of the record on appeal, his petition states that he was given both a commitment to ODYS as a juvenile and an adult criminal sentence as a serious youthful offender. Accordingly, on the basis of appellant‘s own assertion that he was subject to serious youthful offender proceedings, we find his due process challenge lacks merit. {¶ 33} This court has stated: “It has been recognized that plea agreements are essential to the prompt disposition of criminal proceedings. A plea bargain is subject to contract law standards. Because a plea bargain is contractual in nature, we must first examine the nature of the plea agreement to determine what the parties understood at the time of the plea, and determine whether a breach occurred.” State v. Pointer, Cuyahoga App. No. 85195, 2005-Ohio-3587. {¶ 34} It is impossible to determine from the record whether appellant‘s adjudication for delinquency on the charge of rape was the result of a finding by the juvenile court after trial, or an admission by appellant pursuant to a plea agreement. Although appellant asserts in his petition that his delinquency adjudication was the result of a plea agreement, he has not established the existence of any agreement between him and the state, or cited to any details of any such agreement. {¶ 35} Even if we were to assume for the sake of argument that appellant‘s delinquency adjudication was the result of a plea agreement, we do not find an impairment of contract. Once appellant entered his plea, and the court {¶ 36} Therefore, we join the numerous other Ohio courts that have rejected arguments similar to appellant‘s and find that Senate Bill 10 does not impair the obligation of contracts. See State v. Randlett, supra; In re Gant, supra; State v. Desbiens, Montgomery App. No. 22489, 2008-Ohio-3375. See, also, State v. Taylor, Geauga App. No. 2002-G-2442, 2003-Ohio-6963; State v. Paris, supra; State v. Harley (May 16, 2000), Franklin App. No. 99AP-374. {¶ 37} The Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution prohibit the imposition of cruel and unusual punishment. The Ohio Supreme Court has determined that the registration and notification provisions of Chapter 2950 are neither criminal nor inflict punishment. Cook and Williams, supra. {¶ 39} Therefore, on the basis of the supreme court‘s findings in Cook, Williams, and Ferguson, we are not persuaded that the registration, verification, and notification provisions of Senate Bill 10 constitute cruel and unusual punishment. {¶ 40} In summary, appellant‘s challenge to the imposition of community notification is sustained, his constitutional challenges are overruled, and the judgment of the juvenile court finding the Adam Walsh Act applicable to appellant is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Costs to be divided equally between appellee and appellant. The court finds there were reasonable grounds for this appeal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MELODY J. STEWART, PRESIDING JUDGE MARY J. BOYLE, J., andConstitutional Challenges
Retroactivity, Ex Post Facto, and Double Jeopardy
Due Process, Equal Protection, and Trial By Jury
Obligation of Contracts
Cruel and Unusual Punishment
JAMES J. SWEENEY, J., CONCUR