In Re I.A.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re I.A., Slip Opinion No. 2014-Ohio-3155.]

NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.

SLIP OPINION NO. 2014-OHIO-3155
IN RE I.A.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as In re I.A., Slip Opinion No. 2014-Ohio-3155.]
Juvenile delinquency—Classification as juvenile-offender registrant—R.C.
2152.83(B)—Timing of hearing.
(No. 2012-2122—Submitted October 9, 2013—Decided July 22, 2014.)
CERTIFIED by the Court of Appeals for Montgomery County, No. 25078,
2012-Ohio-4973.
____________________
PFEIFER, J.
{¶ 1} In this case, we address the issue of when a juvenile court can
conduct an R.C. 2152.83(B)(2) hearing to determine whether a juvenile adjudged
delinquent should undergo juvenile-offender-registrant classification.
Specifically, we address whether a juvenile court can conduct an R.C.
2152.83(B)(2) hearing at the time of disposition in a case in which a juvenile is
committed to a secure facility, or whether the court must wait to conduct the
classification hearing until the juvenile is released from the secure facility. We
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hold that pursuant to R.C. 2152.83(B)(1), a court that commits a child to a secure
facility may conduct at the time of disposition a hearing regarding the
appropriateness of juvenile-offender-registrant classification for that child.
Factual and Procedural Background
{¶ 2} On December 12, 2011, the Clark County Juvenile Court
adjudicated defendant-appellant, I.A., delinquent for a rape he committed when he
was 14 years old, a first-degree felony under R.C. 2907(A)(1)(b) if committed by
an adult. That court transferred the matter to Montgomery County, I.A.’s home
county, for disposition. At I.A.’s February 1, 2012 disposition hearing, the
Montgomery County Juvenile Court committed him to the Department of Youth
Services for a period of at least one year and potentially until he turns 21 years
old. At that same hearing, the court determined that I.A. should be classified as a
juvenile-offender registrant and then classified him as a Tier III sex
offender/child-victim offender. The court did not make I.A. subject to community
notification.
{¶ 3} I.A. appealed his classification to the Second District Court of
Appeals. He contended that the classification violated R.C. 2152.83(B)(1)
because the hearing to determine whether he should be classified occurred at the
time of his disposition, rather than upon his release from a secure facility. R.C.
2152.83(B)(1) states:

(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 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) of this section * * *.

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{¶ 4} I.A. argued that since the juvenile court committed him to the
custody of the Department of Youth Services in a secure facility, the court’s only
option was to classify him “at the time of the child’s release from the secure
facility” and not at the time of disposition. The appellate court, however,
affirmed the judgment of the juvenile court, holding that the language of R.C.
2152.83(B)(1) is unambiguous:

Under division (B) classification as a juvenile-offender registrant is
not automatic; a hearing must first be held after which the court
must decide whether classification is appropriate. The hearing
may be conducted at disposition or it may be conducted on a
committed-juvenile’s release, or the hearing need not be conducted
at all. Division (B) states only that a court “may” conduct a
hearing at either time—a court “may” choose not to conduct a
hearing at either time, or perhaps a court “may” choose to conduct
a hearing at both times. Of course, this choice exists only in a case
in which the juvenile is committed to a secure facility.

2012-Ohio-4973, ¶ 15.
{¶ 5} The court below recognized in its opinion that its interpretation of
R.C. 2152.83(B) differed from that of the Fifth District Court of Appeals in In re
B.G., 5th Dist. Ashland No. 2011-COA-012, 2011-Ohio-5898. I.A. moved the
court to certify that its judgment was in conflict with the Fifth District, and the
court sustained that motion. This court agreed that a conflict exists and ordered
briefing on the following issue: “If a court commits a child to a secure facility,
does R.C. 2152.83(B)(1) permit the court to conduct a classification hearing at the
time of disposition?” 134 Ohio St.3d 1447, 2013-Ohio-347, 987 N.E.2d 726.

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Law and Analysis
{¶ 6} R.C. 2152.83(B) sets forth the juvenile-offender-registrant-
classification procedure for 14- and 15-year-old juveniles who are judged
delinquent for committing a sexually oriented offense or a child-victim-oriented
offense and who are not subject to R.C. 2152.82 (repeat offender) or 2152.86
(serious youthful offender). Under R.C. 2152.83(B), juvenile-offender-registrant
classification is not mandatory; a judge may classify a juvenile as a juvenile-
offender registrant only after first conducting a hearing pursuant to R.C.
2152.83(B)(2) to determine whether the delinquent child should be so classified.
As part of that hearing, a judge must consider numerous statutory factors—
including information about the offender, the victim, the nature of the crime, and
other factors—before determining whether the juvenile should be subject to
juvenile-offender-registrant classification. R.C. 2152.83(D). But the decision
whether to even hold the hearing is at the judge’s discretion, pursuant to R.C.
2152.83(B)(1). Both sides in this case agree on that.
{¶ 7} Where the parties and appellate districts diverge is on the timing of
an R.C. 2152.83(B)(2) hearing. I.A. argues that since the court committed him to
a secure facility, it was prohibited from holding an R.C. 2152.83(B)(2) hearing
until after his release from the secure facility; only if the court’s disposition of
I.A. had not included committing him to a secure facility, he argues, could the
court have held the hearing at the time of the disposition. This is the
interpretation of the statute espoused by the court in B.G. In that case, the court
recognized that “R.C. 2152.83(B) has been construed as permitting the court to
choose when to classify the child, that is, either at the time of disposition or the
time of the child’s release,” In re B.G., 2011-Ohio-5898, ¶ 31, but concluded that
that interpretation runs contrary to the intent of the General Assembly:

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We find this is not what the Legislature intended. The
statute should be construed as permitting the court to classify the
child at disposition unless the child is sent to a secure facility, in
which case it may classify the child upon release. The use of the
word “may” indicates the court has discretion to decide whether,
not when, to classify the child.

Id. at ¶ 32.
{¶ 8} The court in B.G. wrote that R.C. 2152.83(B)(2) supports its
interpretation of R.C. 2152.83(B)(1). R.C. 2152.83(B)(2) states the purpose of a
hearing held pursuant to (B)(1):

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.

{¶ 9} The court found that “[t]his language supports the interpretation
that the Legislature intended for the court to classify the child only after
determining whether the disposition and treatment provided for the child in a
secure setting was effective.” Id. at ¶ 37.
{¶ 10} The court in B.G. also stated, “Our reading of the statute is also
more in accord with the purpose and goals of the juvenile justice system.” 2011-
Ohio-5898, at ¶ 40. The court reasoned that a court should give a child the full
benefit of rehabilitation and treatment before classifying him a juvenile-offender
registrant subject to community notification. Id. at ¶ 41.

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{¶ 11} In the present case, the appellate court dealt squarely with B.G.,
holding that since the plain language of R.C. 2152.83(B)(1) is unambiguous, the
court “must reject any effort to determine what the legislature intended to enact.”
2012-Ohio-4973, ¶ 15. The court also stated that in three previous cases, the Fifth
District had held that the plain language of R.C. 2152.83(B)(1) leaves to the
discretion of the juvenile court the timing of a hearing. Id. at ¶ 13, citing In re
Carr, 5th Dist. Licking No. 08 CA 19, 2008-Ohio-5689, ¶ 21; In re McAllister,
5th Dist. Stark No. 2006CA00073, 2006-Ohio-5554, ¶ 10; and In re Callahan, 5th
Dist. Ashland No. 04COA064, 2005-Ohio-735, ¶ 11. As the court below pointed
out, B.G. did not address those previous decisions.
{¶ 12} We agree with the appellate court in this case that the language in
R.C. 2152.83(B)(1) speaks for itself. “Our first duty in statutory interpretation is
to determine whether the statute is clear and unambiguous.” Estate of
Heintzelman v. Air Experts, Inc., 126 Ohio St.3d 138, 2010-Ohio-3264, 931
N.E.2d 548, ¶ 15. We examine the words used by the General Assembly in the
statute, “and when the General Assembly has plainly and unambiguously
conveyed its legislative intent, there is nothing for a court to interpret or construe,
and therefore, the court applies the law as written.” State v. Kreischer, 109 Ohio
St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496.
{¶ 13} “The statutory use of the word ‘may’ is generally construed to
make the provision in which it is contained optional, permissive, or discretionary
* * *.” Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107, 271 N.E.2d
834 (1971); here, the General Assembly has written a permissive statute. R.C.
2152.83(B)(1) allows, but does not require, “[t]he court that adjudicates a child a
delinquent child” to hold a hearing that may result in a child being classified as a
juvenile-offender registrant. The plain language of the statute is unambiguous—
“[t]he court that adjudicates a child a delinquent child” may hold an R.C.
2152.83(B)(2) hearing at the time of the disposition. Since “[t]he court that

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adjudicates a child a delinquent child” necessarily includes a court that commits a
child to a secure facility, it follows that a court that commits a child to a secure
facility may hold an R.C. 2152.83(B)(2) hearing at the time of disposition.
{¶ 14} R.C. 2152.83(B)(1) does not prevent a court that commits a
juvenile to a secure facility from holding an R.C. 2152.83(B)(2) hearing at the
time of the disposition of the child. Instead, if the court that adjudicates a child
delinquent commits the child to a secure facility, it has a further option: it may
conduct a hearing at the time of the child’s release from the secured facility. The
availability of the second opportunity to hold an R.C. 2152.83(B)(1) hearing is
conditioned upon the court committing the juvenile to a secure facility. R.C.
2152.83(B)(1) presents choices for a court that commits a child to a secure
facility; it expands a court’s options under certain conditions rather than
restricting a court to a certain pathway.
{¶ 15} We reject the court’s contention in B.G. that R.C. 2152.83(B)(2)
supports the interpretation that R.C. 2152.83(B)(1) requires the completion of a
child’s disposition to a secure facility before a court can conduct a hearing on
whether the child should be classified a juvenile-offender registrant. Since (B)(1)
indisputably allows a judge to hold a hearing regarding classification when a child
is not committed to a secure facility, a consideration of the effectiveness of the
disposition of the child is obviously not an essential element to making a
classification determination.
{¶ 16} Finally, the court in B.G. stated that its interpretation of R.C.
2152.83(B)(1) comported with the “purpose and goals of the juvenile justice
system.” 2011-Ohio-5898, ¶ 40. Since the statute is clear on its face, we need not
consider how it fits into the philosophical background of the juvenile justice
system. Still, providing a judge more options for dealing with a delinquent
juvenile is not contrary to the goals of the juvenile justice system. The juvenile
court in this case employed a thoughtful analysis regarding how the timing of an

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R.C. 2152.83(B)(2) hearing might affect a child’s rehabilitation, explaining to I.A.
and I.A.’s counsel during the hearing the court’s beliefs about the possible
benefits of classification at disposition:

I believe there’s substantial literature both within the state of Ohio
and around the country that—a strong argument to classify the
youth today, if I’m going to classify him at all, is because it gives
the youth motivation to understand that if they’ve been
classified—as I would tell your client, if he’s classified today, if
you do better through your treatment, you can have it reduced or I
can declassify you.
Many psychologists have determined that that motivation is
a good motivation to give a youth that can successfully help that
youth complete sex offender treatment. This court is clearly
following that logic in my determination when I do classify you.

{¶ 17} Under R.C. 2152.84(A), any child classified as a juvenile-offender
registrant pursuant to R.C. 2152.83(B) receives a mandatory hearing at the
completion of the juvenile’s disposition “to review the effectiveness of the
disposition and of any treatment provided for the child, to determine the risks that
the child might re-offend, [and] to determine whether the prior classification of
the child as a juvenile offender registrant should be continued or terminated.”
Thus, every child classified after an R.C. 2152.83(B)(2) hearing—whether the
court decides to classify the juvenile at disposition or after release from a secure
facility—will receive at the completion of his or her disposition a hearing
regarding whether the classification continues to be appropriate.

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Conclusion
{¶ 18} In this conflict case, this court ordered briefing on the question “If
a court commits a child to a secure facility, does R.C. 2152.83(B)(1) permit the
court to conduct a classification hearing at the time of disposition?” We answer
that question in the affirmative. In this case, R.C. 2152.83(B)(1) allowed the
juvenile court, as a court that adjudicated I.A. a delinquent child, to hold an R.C.
2152.83(B)(2) hearing at the time of disposition. Further, as the court that
committed I.A. to a secure facility, the juvenile court also had the ability to hold a
hearing upon I.A.’s release from the secure facility. Accordingly, we affirm the
judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and O’NEILL,
JJ., concur.
FRENCH, J., concurs in judgment only.
____________________
FRENCH, J., concurring in judgment only.
{¶ 19} I agree that it was proper for the juvenile court to hold a
classification hearing at the time of I.A.’s disposition. I write separately,
however, to disavow the notion—as stated in the court of appeals’ opinion, 2012-
Ohio-4973, ¶ 15, and as suggested by the majority at ¶ 14 and 17—that the
juvenile court could have also held a second R.C. 2152.83(B) hearing at the time
of I.A.’s release. R.C. 2152.83(B) authorizes only a single hearing. A juvenile
court may choose to hold that hearing either at the juvenile’s disposition or at the
time of the juvenile’s release, but not at both.
{¶ 20} R.C. 2152.83(B)(1) provides that a juvenile court “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.” (Emphasis added.) Although

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the statute unambiguously provides a court with two options, the connector “or”
separates them, indicating distinct alternatives. Pizza v. Sunset Fireworks Co.,
Inc., 25 Ohio St.3d 1, 4-5, 494 N.E.2d 1115 (1986). A juvenile court may choose
option one (a hearing at disposition) or option two (a hearing at release), but it
cannot choose both.
{¶ 21} Indeed, R.C. 2152.83(B)(2) authorizes only a single hearing. (“A
judge shall conduct a hearing under division (B)(1) of this section * * *”). And
the remainder of the statute unambiguously refers to the R.C. 2152.83(B) hearing
as a one-time event. See R.C. 2152.83(B)(1) (juvenile court “may conduct * * * a
hearing” [emphasis added]), 2152.83(B)(2) (“The judge may conduct the
hearing”; “If the judge conducts the hearing”; “upon completion of the hearing”
[emphasis added]), and 2152.83(C)(1) (referring to “the hearing under division
(B) of this section” [emphasis added]).
{¶ 22} Given the consistent, plain language of the statute, I cannot support
the idea that “a court ‘may’ choose to conduct a hearing at both times.” 2012-
Ohio-4973, ¶ 15. A juvenile court has discretion over the timing of its R.C.
2152.83(B) hearing, but there can be only one hearing.
____________________
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Andrew T. French and Matthew T. Crawford, Assistant Prosecuting Attorneys,
for appellee.
Timothy Young, State Public Defender, and Amanda J. Powell, Assistant
Public Defender, for appellant.
_______________________

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