In re J.M.
For Appellee: Attorney Thomas Straus, Prosecuting Attorney; Attorney Samuel Pate, Assistant Prosecuting Attorney, 16001 State Route 7, Steubenville, Ohio 43952
For Appellant: Attorney Timothy Young, Ohio Public Defender; Attorney Amanda Powell, Assistant Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
¶{1} Juvenile appellant J.M. appeals the decision of the Jefferson County Juvenile Court classifying him a Tier I juvenile sex offender. Four issuеs are raised in this appeal. The first issue is whether the juvenile court committed error in finding J.M. to be a juvenile offender registrant subject to classification under the sex offender statutes when the record does not clearly indicate he was fourteen years of age at the time of the offense. The second issue is whether, assuming J.M. was fourteen years of age at the time offense, the juvenile court considered the factors in
STATEMENT OF FACTS
¶{2} A two count complaint was issued against J.M. on February 12, 2008, alleging that “sometime in 2005,” he: 1) raped A.H. in violation of
¶{3} J.M. denied the allegations in the complaint and filed a motiоn for discovery. 02/25/08 J.E. and Motion. On February 26, 2008, the state filed its answers to discovery. Included in the response to discovery was a report from the investigating officer that stated that J.M. advised the officer that he was fourteen at the
¶{4} The state and J.M. reached a plea agreement and a change of plеa hearing was held on May 21, 2008. The state amended the count for rape, a violation of
¶{5} “The Court finds that the delinquent child has been adjudicated a delinquent child or admitted to committing a sexually oriented offense as defined by
¶{6} “A hearing will be held at or prior to the end of disposition to determine his classification.” Id.
¶{7} J.M. was then committed to the legal custody of the Ohio Department of Youth Services for a minimum period of six months. Id. However, that sentence was suspended, and he was placed at the New Horizon Youth Center for a minimum period of six months. Id. The court also imposed probation for a minimum term of one year and J.M. was ordered to have no contact with the victim. Id.
¶{9} J.M. timely appeals from the order classifying him a juvenile sex offender and labeling him a Tiеr I offender.
FIRST ASSIGNMENT OF ERROR
¶{10} “THE JEFFERSON COUNTY JUVENILE COURT COMMITTED PLAIN ERROR WHEN IT CLASSIFIED J.M. AS A TIER I JUVENILE SEX OFFENDER REGISTRANT WITHOUT MAKING A DETERMINATION ABOUT J.M.‘S AGE AT THE TIME OF THE OFFENSE.
SECOND ASSIGNMENT OF ERROR
¶{11} “THE JEFFERSON COUNTY JUVENILE COURT COMMITTED REVERSIBLE ERROR WHEN IT CLASSIFIED J.M. AS A TIER I JUVENILE SEXUAL OFFENDER REGISTRANT WITHOUT FOLLOWING THE REQUIREMENTS PROVIDED BY
¶{12} These assignments of error both address the trial court‘s classification of J.M. as a Tier I juvenile offender registrant. Thus, they are addressed simultaneously.
¶{13} J.M. admits that neither he nor counsel objected to the juvenile court‘s classification. Thus, we review the arguments under a plain error analysis. Plain error “exists when an error ‘seriously affects the basic fairness, integrity or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.‘” In re J-M.W., 9th Dist. Nos. 23066 and 23144, 2006-Ohio-6156, ¶9, quoting Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 122-23.
¶{14} A juvenile court‘s obligation to classify а juvenile sex offender is governed by portions of both
¶{15} Under these assignments of error, J.M. finds fault with the juvenile court‘s determination that he was a juvenile offender registrant for two reasons. First, he contends that the court committed reversible error when it did not find, prior to labeling him a juvenile offender registrant, that he was fourteen years old at the time of offense. He claims that according to the indictment he could have been either thirteen or fourteеn years of age at the time of the offense since the indictment indicated that the offense occurred “sometime in 2005.” He then asserts that if he was thirteen years of age at the time of the offense, he could not be found to be a juvenile offender registrant and classified under the sex offender classification and registration statutes. Second, he contends that even if he was fourteen at the time of the offense, by statute, classification is discretionary, not mandatory. He claims that the record does not show that the juvenile court was aware that classification was discretionary.
¶{16} The state argued in its appellate brief that J.M.‘s arguments under these assignments of error lack merit because as part of the negotiated plea agreement it was agreed by the parties that the offense occurred when J.M was fourteen years of age. This argument was not based on the record, but rather on the state‘s recollections. At oral argument, however, the state agreed that the matter should be remanded to the trial court for а new classification hearing.
¶{17} Our analysis begins with J.M.‘s first argument that children under the age of fourteen adjudicated delinquent for a sex offense are not subject to classification and registration. It has been explained by our sister district that children under the age of fourteen that are adjudicated delinquent for a sex offense are not subject to classification and registration. In re A.E., 184 Ohio App.3d 812, 2009-Ohio-6094, ¶16.
¶{18}
¶{19} “a person who is adjudicated a delinquent сhild for committing on or after January 1, 2002, a sexually oriented offense or a child-victim oriented offense, who is fourteen years of age or older at the time of committing the offense, and who a juvenile court judge, pursuant to an order issued under section 2152.82, 2152.83, 2152.84, 2152.85, or 2152.86 of the Revised Code, classifies a juvenile offender registrant and specifies has a duty to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.” (Emphasis Added).
¶{20}
¶{21} Consequently, given all of the above, juvenile offendеrs under the age of fourteen at the time of the offense cannot be classified a juvenile offender registrant.
¶{22} The record discloses that J.M. was born January 26, 1991, and therefore, for the first 26 days of 2005, he was thirteen years of age. The complaint states that the offense occurred some time in 2005. Therefore, J.M. could have been either thirteen or fourteen years old at the time of the offense.
¶{23} Nothing in the record before this court conclusively establishes whether J.M. was thirteen or fourteen years of age at the time оf the commission of the offense. The state did not amend the complaint to specify that the offense occurred when J.M. was fourteen years of age. The record also does not contain the negotiated plea
¶{24} The only evidence in the record of J.M.‘s age at the time of the offense is conflicting. In the discovery packet, which was filed with the court prior to the change of plea and prior to the classification hearing, the officer‘s incident report indicates that J.M. told the officer the offense occurred when he was fourteen. However, the discovery packet also included a written statement made by J.M. in which he stated that “I was about 14.” J.M. indicating he was “about” fourteen is not a clear indication of his age. Thus, the record before this court creates an issue as to whether J.M. was 13 or 14 years of age at the time of the offense.
¶{25} However, that is not the only problem in this case. J.M.‘s second argument is that the record does not show that the trial court was aware that if J.M. was fourteen at the time of the offense that labeling him a juvenile offender registrant and classifying him in a tier was discretiоnary, not mandatory. There is merit with this argument.
¶{26} The juvenile court‘s classification order states that J.M. was classified pursuant to
¶{27} Therefore, the juvenile court‘s classification could only be correct if
¶{28} “(B)(1) 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 сustody 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) of this section if all of the following apply:
¶{29} “(a) 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.
¶{30} “(b) The child was fourteen or fifteen years of age at the time of committing the offense.
¶{31} “(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 section 2152.86 of the Revised Code.
¶{32} “(2) A judge shall conduct a hearing under division (B)(1) of this section to review the effectiveness of the disposition made of the child and of any treatment provided for the child placed in a secure setting and to determine whether the child should be classified a juvenile offender registrant. The judge may conduct the hearing on the judge‘s own initiative or based upon a recommendation of an officer or employee of the department of youth services, a probation officer, an employee of the court, or a prosecutor or law enforcement officer. If the judge conducts the hearing, upon completion of the hearing, the judge, in the judge‘s discretion and after consideration of the factors listed in division (E) [sic] of this section, shall do either of the following:
¶{33} “(a) Decline to issue 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, and 2950.06 of the Revised Code;
¶{35} Assuming that J.M. was fourteen at the time of the offense, the three requirements in subsection (B)(1)(a), (b), and (c) are met and thus, following the hearing after J.M. was released from New Horizon Youth Center, the juvenile court was permitted to classify him. That said, the language of section (B)(2)(a) and (b) clearly indicates that such a classification is discretionary and that the juvenile court must consider certain factors before determining whether to classify a juvenile.
¶{36} “(D) In making a decision under division (B) of this section as to whether a delinquent child should be classified a juvenile offender registrant, a judge shall consider all relevant factors, including, but not limited to, all of the following:
¶{37} “(1) The nature of the sexually oriented offense or the child-victim oriented offense committed by the child;
¶{38} “(2) Whether the child has shown any genuine remorse or compunction for the offense;
¶{39} “(3) The public interest and safety;
¶{40} “(4) The factors set forth in division (K) оf section 2950.11 of the Revised Code, provided that references in the factors as set forth in that division to ‘the offender’ shall be construed for purposes of this division to be references to ‘the delinquent child;’
¶{42} “(6) The results of any treatment provided to the child and of any follow-up professional assessment of the child.”
¶{43} This section‘s use of the word “shall” indicates that the juvenile court is rеquired to consider those factors prior to determining whether or not to find J.M. to be a juvenile offender registrant. That said, there is nothing in the statute that indicates that the juvenile court was required to state on the record that it considered those factors and/or which ones applied.
¶{44} The entire colloquy at the classification hearing is as follows:
¶{45} “THE COURT: We‘ll call Case Number 2008-DL-34, [J.M.]. The case is called for a classification hearing. We have no prosecutor, although it‘s not necessary. Mr. Stickles, is there anything you‘d like to say before we proceed?
¶{46} “MR. STICKLES [counsel for J.M.]: Just briefly, Your Honor. I‘ve had a chance to go over this with my client. We‘ve gone over the nunc pro tunc journal entry in this case amending the code section from 2907.05(B) to one of 2907.05(A)(5).
¶{47} “He understands at this time that that will result in a registration period of 10 years during which time he will have to register in person with the sheriff of the county in which he resides, is employed or obtaining an eduction [sic] annually on the anniversary date of his initial registration.
¶{48} “We‘ve gone over the registration form. Your Honor, I‘ve gone over it with him and his parents. To the best of anyone‘s ability I fully believe they understand the form. It is complicated in nature and they have been instructed that should they have any questions they‘re to contact either my office or Lieutenant Bell after Mr. McGraw completes his initial registration today.
¶{49} “THE COURT: Very well. Thank you. We‘ll go over that again. So based on the nunc pro tunc order which makes it possible that we can use Tier 1 [sic] as opposed to a more restrictive or more punitive registration, based on that order the Court finds that you arе a Tier 1 [sic] sex offender and you are not going to be subject to community notification. In other words, we‘re not going to tell everybody around you
¶{50} “[J.M.]: No, sir.
¶{51} “THE COURT: All right. Then we will order that you be a Tier 1 [sic] – classification as a Tier 1 [sic] sex offender. Okay. Good luck to you.
¶{52} “[J.M.]: Thank you.
¶{53} “THE COURT: Thank your attorney. He did a good job for you.
¶{54} “MR. STICKLES: Thank you, Your Honor.” 05/14/09 Tr. 3-4.
¶{55} From this dialog we cannot conclude that the trial court or counsel was aware that if J.M. was fourteen at the time of the offense that classification and registration was discretionary, not mandatory or that if J.M. was thirteen at the time of the offense classification was not permitted.
¶{56} The Fifth Appellate District has recently reviewed an argument that the classification of a fifteen year old juvenile as a juvenile offender registrant and a Tier III offender was done without considеring all necessary factors. In the Matter of D.D., 5th Dist. No. 2008CA0167, 2009-Ohio-2501. In that case, the court, at the hearing, indicated that the classification as a Tier III offender was mandatory. The prosecutor then interjected that given the juvenile‘s age, registration as a juvenile offender registrant was discretionary, not mandatory. The juvenile court then found that it had no discretion as to which tier to classify D.D., he was classified a Tier III offender as a matter of law. In remanding for a new classification hearing, the Fifth Appellate District stated:
¶{57} “The record clearly reflects the trial court found the classification level to be Tier III as a matter of law. And, while the prosecutor advised and the trial court appears to have understood, the decision to classify Appellant a juvenile offender registrant was discretionary under
¶{59} Consequently, we embrace the Fifth Appellate District‘s use of an abundance of caution and reverse and remand the cause for a redetermination of whether J.M. is to be classified as a juvenile offender registrant and assigned Tier I. We do so for four reasons. First, the record before this cоurt does not establish whether J.M. was fourteen or thirteen years of age when he committed the offense. Second, we do not know from the record before this court whether there was a negotiated plea agreement between the parties where the parties agreed that J.M. was fourteen at the time of the offense. Third, if there was a plea agreement, we do not know whether the juvenile offender registrant classification and Tier I classification was a part of that plea agreement. Finally, if there was no plea agreement, the record before this court does not show whether the trial court or defense counsel was aware that classification for a fourteen year old was discretionary and that classification was not permitted if J.M. was thirteen years of age at the time of the offense. As such, we find merit with these assignments of error.
THIRD ASSIGNMENT OF ERROR
¶{60} “J.M. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
¶{61} In J.M.‘s third assignment or error, he argues that trial counsel was ineffective at the classification hearing for two reasons. First, counsel failed to argue
¶{62} Based on our resolution of the first and second assignments of error, this assignment of error is rendered moot and consequently is not addressed.
FOURTH ASSIGNMENT OF ERROR
¶{63} “THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO J.M., AS THE LAW VIOLATES HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW. FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION; ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION.”
¶{64} J.M. contends that Senate Bill 10 violates his right to equal protection under the law bеcause it treats classes of juvenile offenders differently. For instance, juvenile offenders that are found delinquent for committing a sexually oriented offense when they are sixteen or seventeen years of age are mandated to be labeled juvenile offender registrants.
¶{65} J.M. did not raise this issue to the juvenile court. Typically, constitutional issues not raised to the trial court are waived on appeal. In re Goodman, 161 Ohio App.3d 192, 2005-Ohio-2364, ¶26, citing State v. Awan (1986), 22 Ohio St.3d 120, 122-123. However, it is within the reviewing court‘s discretion to address the constitutional argument under a plain error analysis. In re M.D. (1988), 38 Ohio St.3d 149, 151 (stating that the waiver doctrine announced in Awan is discretionary). The Ohio Supreme Court has cautioned that constitutional questions should not be answered unless it is absolutely necessary; if a case can be decided without addressing the constitutional issue, the constitutional issues should not be ruled on. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶9. See, also, State v. Hale, 7th Dist. No. 04MO14, 2005-Ohio-7080, ¶11. As aforementioned, we have found merit with the first and second assignments of error. Consequently, in this instаnce, we decline to exercise our discretion to review the constitutional argument.3
CONCLUSION
¶{66} For the foregoing reasons, we find that the first and second assignments of error have merit. Therefore, the judgment of the trial court is hereby reversed and this cause is remanded to the trial court for redetermination of whether to classify J.M. as a juvenile offender registrant. The third assignment of error is rendered moot by our resolution of the first two assignments of error. Likewise, we decline to exercise our discretion to review the fourth assignment of еrror because of our resolution of the first and second assignments of error and because the matter was not first raised in the trial court.
Waite, J., concurs.
DeGenaro, J., concurs.