[Cite as In re A.R.R., 194 Ohio App.3d 40, 2011-Ohio-1186.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
IN RE A.R.R. : Case No. 10CA3159
: DECISION AND JUDGMENT ENTRY
___________________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLEE: Michael M. Ater, Ross County Prosecuting Attorney,
and Robert C. Hess, Assistant Prosecuting Attorney,
for appellant.
COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender,
and Amanda J. Powell, Assistant Public Defender,
for appellee.
______________________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-7-11
ABELE, Judge.
{¶ 1} This is an appeal from a Ross County Common Pleas Court, Juvenile Division,
judgment that classified A.R.R., appellant, a Tier III juvenile sex offender.
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
The Ross County Juvenile Court erred when it classified
[A.R.R.] as a Tier III juvenile sex offender registrant after he
turned twenty-one years of age.
SECOND ASSIGNMENT OF ERROR:
ROSS, 10CA3159 2
The Ross County Juvenile Court abused its discretion when
it classified [A.R.R.] as a Tier III juvenile sexual offender
registrant without considering the proper factors and applying
current law.
THIRD ASSIGNMENT OF ERROR:
The trial court erred when it applied Senate Bill 10 to
[A.R.R.], as the law violates his right to equal protection under the
law.
FOURTH ASSIGNMENT OF ERROR:
The retroactive application of Senate Bill 10 to [A.R.R.]
violates the Ex Post Facto Clause of the United States Constitution
and the Retroactivity Clause of Section 28, Article II of the Ohio
Constitution.
{¶ 3} A.R.R. was previously adjudicated a delinquent child for having committed a
sexually oriented offense. At the March 16, 2009 hearing, the magistrate recommended that he
be classified a Tier III sex offender under the Adam Walsh Child Protection and Safety Act
(“AWA”) enacted in 2007. See Am.Sub.S.B. No. 10. Two days later, the juvenile court agreed
with the magistrate and found that “the child is required to be classified as a Tier III Juvenile Sex
Offender Registrant pursuant to O.R.C. 2152.83(A).” (Emphasis added.)
{¶ 4} On appeal, we reversed the judgment because it appeared that the trial court felt
compelled to make that classification based on appellant’s age, when, in fact, it had discretion to
decide the issue. See In re A.R.R., Ross App. No. 09CA3105, 2009-Ohio-7067 (“A.R.R. I”).
On remand, the trial court again considered the matter and classified appellant a Tier III sex
offender. This appeal followed.
I
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{¶ 5} Appellant’s first assignment of error raises the issue of whether the trial court
possessed jurisdiction to classify him a Tier III sexual offender. By way of background,
appellant’s date of birth is September 12, 1988. Thus, he turned 21 years of age on September
12, 2009. Appellant cites a recent decision from the Third District that held that a juvenile court
loses jurisdiction to classify an offender a Tier III sex offender once the offender reaches the age
of 21 years. See In re G.M., 188 Ohio App.3d 318, 2010-Ohio-2295, at ¶ 18. Appellant argues
that he was 21 at the time of the March 22, 2010 hearing, and, thus, the trial court lacked
jurisdiction. He urges us to follow G.M. and vacate his Tier III classification.
{¶ 6} In the case sub judice, we first point out that the March 22, 2010 hearing was held
on remand of A.R.R. I. Appellant's original classification hearing was held March 16, 2009, and
the judgment that classified him a Tier III offender was issued on March 19, 2009. Those
proceedings all occurred in advance of appellant’s twenty-first birthday. In G.M., the Third
District noted that it did not decide the issue “as to what authority the juvenile court may or may
not have after a child's 21st birthday to issue orders to enforce or otherwise modify a
classification order that was entered before the child's 21st birthday.” Id. at ¶ 17, fn. 1. That,
however, is the precise issue before us.
{¶ 7} In the case sub judice, appellant reached the age of 21 years while A.R.R. I was on
appeal. Our reversal and remand ensured that the trial court’s classification was not made on the
basis of its belief that it was required to classify appellant a Tier III offender. We noted that the
juvenile court “may re-impose such classification on remand” if it believed that the evidence
warranted such classification. 2009-Ohio-7067, at ¶ 8.
{¶ 8} We further note that under R.C. 2152.82(C), the classification as a
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juvenile-offender registrant is not affected by a juvenile’s 21st birthday. Although in the case at
bar we reversed and remanded the trial court’s March 18, 2009 classification order, the fact
remains that the court issued the original order before appellant’s 21st birthday.
{¶ 9} Accordingly, under the particular facts and circumstances present in this case, we
conclude that the juvenile court possessed jurisdiction on remand to reenter the Tier III
classification after appellant’s 21st birthday.
{¶ 10} Accordingly, we hereby overrule appellant's first assignment of error.
II
{¶ 11} In his second assignment of error, appellant asserts that his classification as a Tier
III offender constitutes an abuse of the trial court's discretion. We disagree.1
{¶ 12} This court has held that a juvenile court has discretion to classify a delinquent as a
Tier III sex offender. A.R.R. I, supra, at ¶ 7; In re A.M., Athens App. No. 09CA07,
2009-Ohio-7066, at ¶ 7. When a trial court has the discretion to perform an act, its decision is
typically reviewed under the abuse-of-discretion standard. Generally, an abuse of discretion
constitutes more than an error of law or judgment; rather, it implies that the court's attitude was
unreasonable, arbitrary, or unconscionable. See, e.g., Landis v. Grange Mut. Ins. Co. (1998), 82
Ohio St.3d 339, 342, 695 N.E.2d 1140; Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio
St.3d 440, 448, 659 N.E.2d 1242. An appellate court may not find an abuse of discretion simply
1
Although appellant phrases his assignment of error in terms of “abuse of discretion,” he urges us to review the trial
court’s determination de novo and cites In re J.S., Wayne App. No. 07CA0035, 2007-Ohio-6402, at ¶12. The In re J.S. court,
however, made the remark while analyzing the trial court’s interpretation of law. We agree that such rulings are reviewed on
appeal de novo, but here we are reviewing the trial court’s application of law to the facts to determine whether a Tier III
classification is warranted. We concede that little case law exists to establish an appropriate standard of review, but for those
reasons discussed in this opinion, we review this matter under an abuse-of-discretion standard.
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by substituting its judgment for that of the trial court. See State ex rel. Duncan v. Chippewa
Twp. Trustees (1995), 73 Ohio St.3d 728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57
Ohio St.3d 135, 137-138, 566 N.E.2d 1181.
{¶ 13} Our review of the March 22, 2010 classification-hearing transcript reveals that the
magistrate heard arguments from both the prosecutor and appellant’s counsel. In reclassifying
appellant as a Tier III offender, the magistrate considered all of the “factors and circumstances”
surrounding the case, including the rape victim's age (four years). The magistrate also explicitly
stated that “all the factors set forth in * * * [R.C.] 2152.83”2 had been considered.
{¶ 14} We also emphasize that the trial court has been involved with this matter since
2007 and is in the best position to weigh the facts and circumstances and to assess the weight and
credibility of the evidence. Although defense counsel made an impassioned plea on appellant's
behalf, and his appellate counsel argues that more emphasis should have been placed on those
arguments, we find nothing to persuade us that the trial court's decision to classify him a Tier III
sex offender is arbitrary, unreasonable, or unconscionable.
{¶ 15} Accordingly, we hereby overrule appellant's second assignment of error.
III
{¶ 16} We jointly consider appellant’s third and fourth assignments of error in which he
argues that the AWA (1) violates his equal-protection rights and (2) should not apply to him
retrospectively as it violates the United States Constitution’s ban on ex post facto laws, as well as
2
R.C. 2152.83(D) specifies that a juvenile court should consider all relevant factors including, but not limited to, the
nature of the sexually oriented offense as well as the public interest and safety. Id. at (1) and (3). We parenthetically note
that nothing in the statute requires the court to explicitly set forth in its judgment entry how it weighed each individual factor.
See generally In re B.W.K., Portage No. 2009-P-0058, 2010-Ohio-3050, at ¶22.
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the Ohio Constitution’s ban on retroactive laws. We find no merit in these arguments.
{¶ 17} Ohio courts have held that the AWA does not violate a juvenile offender’s equal
protection rights. See, e.g., In re C.P., Athens App. No. 09CA41, 2010-Ohio-1484, at ¶ 18-28;
In re R.D., Licking App. No. 09CA97, 2010-Ohio-2986, at ¶ 36. We have also rejected the
argument that the AWA violates either the federal Constitution's ban on ex post facto laws or the
Ohio Constitution's ban on the retroactive application of laws. See State v. Anderson, Athens
App. No. 09CA18, 2009-Ohio-7014, at ¶ 7; State v. Coburn, Ross App. No. 08CA3062,
2009-Ohio-632, at ¶ 8-13. Nothing in appellant’s brief prompts us to reconsider these decisions.
Thus, unless and until the Ohio Supreme Court holds otherwise, we continue to adhere to those
decisions. Accordingly, we hereby overrule appellant's third and fourth assignments of error.
{¶ 18} After having considered all of the errors appellant assigned and argued, we hereby
affirm the trial court's judgment.
Judgment affirmed.
HARSHA, P.J., and, KLINE, J., concur.