In re D.S.

[Cite as In re D.S., 2014-Ohio-867.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN RE: D.S., JUDGES:
Hon. William B. Hoffman, P.J.
A MINOR CHILD Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.

Case No. 13-CA-58

OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. A 2010-0578

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 3, 2014

APPEARANCES:

For Appellee For Appellant

KENNETH W. OSWALT BROOKE M. BURNS
Licking County Prosecutor Assistant State Public Defender

By: LIA J. MEEHAN 250 East Broad Street, Suite 1400
Assistant Prosecuting Attorney Columbus, Ohio 43215
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 13-CA-58 2

Hoffman, P.J.

{¶1} Appellant D.S., a delinquent child, appeals the June 24, 2013 Judgment

Entry entered by the Licking County Court of Common Pleas, Juvenile Division, denying

his motion to dismiss and classifying him a Tier II Juvenile Sex Offender Registrant.

Appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On August 20, 2010, a complaint was filed in the Licking County Court of

Common Pleas, Juvenile Division, alleging Appellant D.S. was delinquent by reason of

having committed two counts of gross sexual imposition, in violation of R.C.

2907.05(A)(4), a felony of the third degree if committed by an adult, and one count of

public indecency, in violation of R.C. 2907.09(B)(1), a second degree misdemeanor if

committed by an adult. The complaint alleged the offenses occurred between August 1,

2009, and June 4, 2010. D.S.'s date of birth is November 30, 1995, as alleged in the

complaint. Accordingly, D.S. could have been either 13 or 14 years of age at the time of

the alleged offenses.

{¶3} On October 13, 2010, D.S. entered an admission to the two counts of

gross sexual imposition. The State dismissed the charge of public indecency. On

December 8, 2010, the juvenile court adjudicated Appellant a delinquent child and

committed him to the Ohio Department of Youth Services for two consecutive six month

minimum terms. The juvenile court's disposition entry did not include a determination as

to how old D.S. was at the time the offenses were committed. The December 8, 2010

1
A rendition of the underlying facts supporting D.S.'s conviction is unnecessary for our
resolution of this appeal.
Licking County, Case No. 13-CA-58 3

disposition entry states, "classification as a juvenile sex offender registrant is deferred or

delayed pending efforts at rehabilitation while committed to ODYS."

{¶4} On June 17, 2013, following D.S.'s release from ODYS, the trial court

conducted a classification hearing. The trial court considered evidence as to the age of

D.S. at the time the offenses were committed. The court determined D.S. was fourteen

years of age at the time at least one of the offenses was committed; therefore, D.S. was

subject to classification. Following the classification hearing, via Judgment Entry of

June 24, 2013, the trial court overruled Appellant's motion to dismiss and the juvenile

court classified D.S. a Tier II Juvenile Sex Offender Registrant with a duty to comply

with registration requirements every 180 days for 20 years.

{¶5} D.S. now appeals, assigning as error:

{¶6} “I. THE LICKING COUNTY JUVENILE COURT ERRED WHEN IT HELD

AN EVIDENTIARY HEARING ON JUNE 17, 2013 TO DETERMINE WHETHER D.S.

WAS AGE-ELIGIBLE FOR REGISTRATION UNDER SENATE BILL 10, BECAUSE

THAT DETERMINATION COULD ONLY HAVE BEEN LAWFULLY MADE ON

DECEMBER 18, 2010, WHEN THE COURT ADJUDICATED D.S. DELINQUENT.

{¶7} “II. THE LICKING COUNTY JUVENILE COURT ERRED WHEN IT

CLASSIFIED D.S. AS A TIER II JUVENILE OFFENDER REGISTRANT, BECAUSE

THE IMPOSITION OF A DISPOSITION AT ANY TIME OTHER THAN AT THE

DISPOSITION HEARING VIOLATES THE DOUBLE JEOPARDY CLAUSES OF THE

UNITED STATES AND OHIO CONSTITUTIONS.

{¶8} “III. THE LICKING COUNTY JUVENILE COURT ERRED WHEN IT

CLASSIFIED D.S. AS A TIER II JUVENILE REGISTRANT, BECAUSE THE
Licking County, Case No. 13-CA-58 4

IMPOSITION OF A PUNITIVE SANCTION THAT EXTENDS BEYOND THE AGE

JURISDICTION OF THE JUVENILE COURT VIOLATES DUE PROCESS.

{¶9} “IV. D.S. WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE

OF COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THE

CONSTITUTIONALITY OF A CLASSIFICATION THAT EXTENDED BEYOND THE

JURISDICTION OF THE JUVENILE COURT. FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 16 OF THE OHIO CONSTITUTION.”

I.

{¶10} In the first assignment of error, Appellant argues the juvenile court erred in

considering evidence at the classification hearing subsequent to his original adjudication

as being delinquent and disposition thereon to determine whether he was age eligible

for registration under S.B. 10.

{¶11} Ohio Revised Code Section 2152.83 provides,

{¶12} "(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

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,

and 2950.06 of the Revised Code if all of the following apply:

{¶13} "(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.
Licking County, Case No. 13-CA-58 5

{¶14} "(b) The child was sixteen or seventeen years of age at the time of

committing the offense.

{¶15} "(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.

{¶16} "(2) Prior to issuing the order required by division (A)(2) of this section, the

judge shall conduct a hearing under section 2152.831 of the Revised Code, except as

otherwise provided in that section, to determine whether the child is a tier I sex

offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex

offender/child-victim offender. When a judge issues an order under division (A)(1) of this

section, the judge shall include in the order the determinations identified in division (B)

(5) of section 2152.82 of the Revised Code.

{¶17} "(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 if all of the following apply:

{¶18} "(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.

{¶19} "(b) The child was fourteen or fifteen years of age at the time of

committing the offense.
Licking County, Case No. 13-CA-58 6

{¶20} "(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.

{¶21} "(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) of this section, shall do either of the following:

{¶22} "(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;

{¶23} "(b) 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 and that states the determination that the

judge makes at the hearing held pursuant to section 2152.831 of the Revised Code as

to whether the child is a tier I sex offender/child-victim offender, a tier II sex

offender/child-victim offender, or a tier III sex offender/child-victim offender.
Licking County, Case No. 13-CA-58 7

{¶24} "(C)(1) Prior to issuing an order under division (B)(2)(b) of this section , the

judge shall conduct a hearing under section 2152.831 of the Revised Code to determine

whether the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-

victim offender, or a tier III sex offender/child-victim offender. The judge may hold the

hearing at the same time as the hearing under division (B) of this section.***"

{¶25} (Emphasis added.)

{¶26} In support of his argument, Appellant cites the Ohio Supreme Court

decision in State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636.

{¶27} In Raber, the defendant, an adult offender, was convicted of sexual

imposition; therefore, according to R.C. 2950.01(B)(2)(a), a finding of consent, or lack

thereof, was required before the court could classify the offender as a registrant when

the victim was over eighteen years of age and not under the custody of the offender.

The indictment did not allege whether the sexual conduct between Raber and his

girlfriend was consensual. At sentencing, the issue remained disputed. The trial court

sentenced Raber to sixty days in jail, plus a fine and community control. The sentencing

entry did not contain a registration requirement.

{¶28} On March 2, 2010, thirteen months after sentencing, the trial court held an

evidentiary hearing to determine whether Raber should be classified a Tier I sex

offender subject to registration. During the hearing, the victim testified she had

consented to vaginal intercourse, but not anal intercourse. Based upon the testimony,

the trial court determined the intercourse was not consensual, and proceeded in

classifying Raber a Tier I sex offender.
Licking County, Case No. 13-CA-58 8

{¶29} The Supreme Court of Ohio vacated the classification finding the trial court

lacked authority to classify Raber. The Court found R.C. 2950.01(B)(2) specifically

excepted consensual conduct from being registration eligible, and the State needed to

prove the issue before Raber was convicted and sentenced.

{¶30} The Raber court held:

{¶31} "In this case, at the November 26, 2008 sentencing hearing, the state

failed to prove the lack of consent to the sexual activity, nor did it file a supplemental

brief pointing to evidence in the record demonstrating a lack of consent. The court

thereafter entered a judgment of conviction without finding Raber to be a sex offender

subject to Tier I registration and without notifying him of a duty to register, presumably

on its determination that no duty existed based on the sexual activity's being

consensual.

{¶32} "A presumption of regularity attaches to all judicial proceedings. See, e.g.,

State v. Edwards, 157 Ohio St. 175, 183, 105 N.E.2d 259 (1952); State v. Sweet, 72

Ohio St.3d 375, 376, 650 N.E.2d 450 (1995); State v. Robb, 88 Ohio St.3d 59, 87, 723

N.E.2d 1019 (2000). Here, the record is silent regarding the trial court's reasoning for

not classifying Raber as a sex offender subject to registration in its judgment of

conviction, and therefore '[t]here is no showing of irregularity to contradict the

presumption of regularity accorded all judicial proceedings.' Sweet, 72 Ohio St.3d at

376, 650 N.E.2d 450.

{¶33} "Reconsideration of Final Judgments

{¶34} "We have previously recognized that 'trial courts lack authority to

reconsider their own valid final judgments in criminal cases.' State ex rel. White v.
Licking County, Case No. 13-CA-58 9

Junkin, 80 Ohio St.3d 335, 338, 686 N.E.2d 267 (1997), citing State ex rel. Hansen v.

Reed, 63 Ohio St.3d 597, 589 N.E.2d 1324 (1992). And although trial courts retain

continuing jurisdiction to correct a void sentence and to correct a clerical error in a

judgment, State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856

N.E.2d 263, ¶ 19, neither of those exceptions to the general rule applies here.

{¶35} "The trial court had no mandatory duty to impose sex-offender registration

after determining the sexual activity to be consensual and considering the ages of those

involved. The state fails to demonstrate a clerical mistake, which, as we explained in

Cruzado, '‘refers to a mistake or omission, mechanical in nature and apparent on the

record, which does not involve a legal decision or judgment.’' Id. at ¶ 19, quoting State

v. Brown, 136 Ohio App.3d 816, 819–820, 737 N.E.2d 1057 (3d Dist.2000). Nothing in

the record demonstrates error by the trial court in failing to classify Raber as a sex

offender in its original judgment of conviction.

{¶36} "Double Jeopardy

{¶37} "This court previously upheld the prior sex-offender registration statutes

enacted by the General Assembly against constitutional challenge. In State v. Williams,

88 Ohio St.3d 513, 528, 728 N.E.2d 342 (2000), we held that because Megan's Law did

not impose punishment, it necessarily did not violate the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution. And in State v. Ferguson, 120 Ohio

St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, we concluded that sex-offender registration

remained a civil, remedial regulatory scheme notwithstanding amendments to Megan's

Law enacted by Am.Sub.S.B. No. 5, effective July 31, 2003, that increased burdens on
Licking County, Case No. 13-CA-58 10

sex offenders, because the amended statute did not impose criminal punishment. Id. at

¶ 39, 43.

{¶38} "However, in Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108, we determined that the registration duties imposed by S.B. 10 could no longer be

considered civil in nature, holding that 'R.C. Chapter 2950 is punitive.' Id. at ¶ 16. And In

re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, stands for the

proposition that S.B. 10 violates Ohio's constitutional prohibition against cruel and

unusual punishment by imposing an automatic, lifetime requirement of sex-offender

registration and notification on certain juvenile offenders. Id. at ¶ 86. Thus, our cases

hold that S.B. 10 imposes additional criminal punishment on those convicted of sexually

oriented offenses.

{¶39} "The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution protects against the imposition of multiple criminal punishments for

the same offense in successive proceedings. Hudson v. United States, 522 U.S. 93, 99,

118 S.Ct. 488, 139 L.Ed.2d 450 (1997); United States v. Husein, 478 F.3d 318, 338 (6th

Cir.2007). As the United States Court of Appeals for the D.C. Circuit has explained, 'If a

defendant has a legitimate expectation of finality, then an increase in that sentence is

prohibited by the double jeopardy clause.' United States v. Fogel, 829 F.2d 77, 87

(D.C.Cir.1987).

{¶40} "Although we have recognized that '[w]here * * * the sentence imposed

was unlawful and thus void, there can be no reasonable, legitimate expectation of

finality in it,' State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶

36, the judgment of conviction entered in this case is neither unlawful nor void. And
Licking County, Case No. 13-CA-58 11

although trial courts 'possess inherent authority to correct errors in judgment entries so

that the record speaks the truth,' State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163–

164, 656 N.E.2d 1288 (1995), the decision not to classify Raber as a Tier I sex offender

was not a clerical error.

{¶41} "Accordingly, Raber had a legitimate expectation of finality in his sentence

when the trial court entered its judgment of conviction on December 1, 2008, and the

protections of the Double Jeopardy Clause prohibited the trial court from reopening this

case, conducting a separate trial to determine whether the sexual activity at issue here

was consensual, and classifying Raber as a sex offender subject to Tier I registration.

{¶42} "Conclusion

{¶43} "The trial court lacked authority to reopen this case to reconsider the final

judgment it had entered, and the protections against double jeopardy barred it from

classifying Raber as a Tier I sex offender more than a year after it imposed sentence.

Accordingly, the judgment of the court of appeals is reversed."

{¶44} We find Raber to be factually and procedurally distinguishable from the

case at hand. Raber was classified pursuant to R.C. 2950.01(B)(2) as an adult sexual

offender. The same statute is not applicable to Appellant, D.S. a juvenile offender.

Rather, as set forth above, the juvenile statute applicable herein specifically provides for

the classification hearing to occur upon Appellant's release from ODYS.

{¶45} R.C. 2950.03(A)(3) states,

{¶46} "(3) If the person is a delinquent child who is classified a juvenile offender

registrant on or after January 1, 2008, the judge shall provide the notice to the

delinquent child at the time specified in division (B) of section 2152.82, division (C) of
Licking County, Case No. 13-CA-58 12

section 2152.83, division (C) of section 2152.84, or division (E) of section 2152.85 of the

Revised Code, whichever is applicable."

{¶47} We find Appellant's age at the time of the offense and the effect thereof on

his classification were properly considered at the classification hearing. The complaint

adequately set forth the time parameters of the offenses, Appellant's date of birth,

raising the issue as to whether Appellant was fourteen years of age at the time of the

offense. Whether Appellant D.S. was "subject to registration" was an issue properly to

be determined during the trial court's hearing on registration/classification. It was not an

issue that needed to be determined at his original disposition because of his

commitment to a secure facility.

{¶48} Pursuant to R.C. 2152.83(B)(2), the trial court was directed to hold a

hearing to determine whether the delinquent child had been rehabilitated during the time

of commitment. If the trial court determined the juvenile had not been adequately

rehabilitated, the issue of whether the juvenile was subject to registration and

classification was properly before the trial court. The State and delinquent child could

and did present evidence regarding the juvenile's treatment progress, behaviors while

incarcerated, and other relevant information. Appellant's age became a factor relative to

classification properly considered at that time.

{¶49} Appellant cites the Seventh District Court of Appeals' decision in In re

J.M., 7th Dist. No. 09JE21, 2010-Ohio-2700 and the Eleventh District Court of Appeals'

decision in In re N.Z., 11th Dist. Nos. 2010-L-023, 2010-L035, 2010-L-041, 2011-Ohio-

6845. However, we find these cases procedurally distinguishable from the case sub

judice. In re J.M. and In re N.Z. did not involve procedural situations in which the trial
Licking County, Case No. 13-CA-58 13

courts considered evidence at the classification hearing on the issue of age prior to the

classification. Rather, in both cases, the appellate courts remanded the matter to the

trial courts for reclassification hearings to consider evidence on the issue of age.

{¶50} Appellant D.S.'s first assignment of error is overruled.

II. and III.

{¶51} Appellant's second and third assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

{¶52} In the second assignment of error, Appellant argues his classification as a

Tier II Juvenile Sex Offender Registrant violates the Double Jeopardy Clause of the

Fifth Amendment of the United States Constitution.

{¶53} In the third assignment of error, Appellant maintains the trial court erred in

imposing a punitive sanction extending beyond the age jurisdiction of the juvenile court,

violating Appellant's right to Due Process.

{¶54} The Double Jeopardy Clause of the Fifth Amendment protects against the

imposition of multiple criminal punishments for the same offense in successive

proceedings.

{¶55} R.C. 2152.83(E) provides,

{¶56} "(E) An order issued under division (A) or (B) of this section and any

determinations included in the order shall remain in effect for the period of time

specified in section 2950.07 of the Revised Code, subject to a modification or

termination of the order under section 2152.84 of the Revised Code, and section

2152.851 of the Revised Code applies regarding the order and the determinations. The

child's attainment of eighteen or twenty-one years of age does not affect or terminate
Licking County, Case No. 13-CA-58 14

the order, and the order remains in effect for the period of time described in this

division."

{¶57} The statute, therefore, specifically, continues the jurisdiction of the juvenile

court to classify the juvenile beyond their twenty-first birthday. The legislature retains

the power to define the jurisdiction of the courts as long as powers inherently reserved

for the judiciary are not infringed upon. Seventh Urban, Inc. v. University Circle, (1981)

67 Ohio St.2d 19.

{¶58} In the case at bar, the classification of D.S. as a juvenile offender

registrant was not mandatory under the circumstances of this case because D.S. was

fourteen years old at the time of at least one offense, did not have a prior adjudication

for a sexually oriented offense, and had not been labeled a serious youthful offender.

See R.C. 2152.83(B)(1), 2152.82, and 2152.86. As classification was not mandated by

statute, the juvenile court was given the broad discretion to determine whether D.S.

should be classified as a juvenile offender registrant and under which tier D.S. should

be placed.

{¶59} Recently, this Court addressed the issues raised herein in In Re D.R., a

Minor Child 5th Dist No. 13CA27, 2014-Ohio-588, holding:

{¶60} "Laws limiting rights, other than fundamental rights, are constitutional with

respect to substantive due process and equal protection if the laws are rationally related

to a legitimate goal of government. State v. Thompkins (1996), 75 Ohio St.3d 558.

{¶61} "* * *

{¶62} In the case at bar, we cannot say that the classification authorized by R.C.

2152.83(B) is irrational. Pursuant to R.C. 2152.83(B), the juvenile court judge retains
Licking County, Case No. 13-CA-58 15

discretion to deal individually with juvenile offenders. In Re C.P., (citation omitted).

'Fundamental fairness requires that the judge decide the appropriateness of any such

penalty.' Id. at ¶78. Although imposition of R.C. 2152.83(B) registration requirements

may be punitive, they may help achieve the goal of rehabilitation by motivating the

juvenile to comply with treatment in order to reduce or eliminate the registration

requirement. In Re I.A, 2nd Dist. Montgomery No. 25078, 2012 Ohio 4973.

{¶63} "Accordingly, D.R. has failed to show that a JOR classification that

extends beyond a child's twenty-first birthday violates either the United States or Ohio

constitutional prohibitions against cruel and unusual punishment or the requirements of

due process.

{¶64} "* * *

{¶65} "In her second assignment of error, D.R. contends that the juvenile court

erred by classifying D.R. upon release from a secure facility rather than at the time of

disposition. Classifying a juvenile at any time other than disposition, D.R. argues,

violates the Double Jeopardy Clause of the Fourteenth Amendment to the United States

Constitution, by imposing multiple criminal punishments for the same offense in

successive proceedings.

{¶66} "The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution and Section 10, Article I of the Ohio Constitution protect criminal

defendants against multiple prosecutions for the same offense. The Ohio Supreme

Court has recognized that '[t]he protections afforded by the two Double Jeopardy

Clauses are coextensive.' State v. Martello, 97 Ohio St.3d 398, 2002–Ohio–6661, 780
Licking County, Case No. 13-CA-58 16

N.E.2d 250, ¶ 7, citing State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d

435(1996).

{¶67} "The principle behind the Double Jeopardy Clause ' ‘is that the State with

all its resources and power should not be allowed to make repeated attempts to convict

an individual for the alleged offense, thereby subjecting him to embarrassment, expense

and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as

well as enhancing the possibility that even though innocent he may be found guilty.’ '

State v. Roberts, 119 Ohio St.3d 294, 2008–Ohio–3835, 893 N.E.2d 818, ¶ 11, quoting

Green v. United States, 355 U.S. 184, 187–188, 78 S.Ct. 221, 2 L.Ed.2d 199(1957).

The federal and state constitutions' double jeopardy protection further guards citizens

against cumulative punishments for the 'same offense.' State v. Moss, 69 Ohio St.2d

515, 518, 433 N.E.2d 181(1982). '[T]he Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment than the legislature

intended.' Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535,

542(1983). See, also, Moss, 69 Ohio St.2d at 518, 433 N.E.2d at 184–185. In Ohio v.

Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425(1984), the United States

Supreme Court stated:

{¶68} "' * * * Because the substantive power to prescribe crimes and determine

punishments is vested with the legislature, United States v. Wiltberger, 5 Wheat. 76, 93,

5 L.Ed. 37 (1820), the question under the Double Jeopardy Clause whether

punishments are ‘multiple’ is essentially one of legislative intent, see Missouri v. Hunter,

459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). * * * '
Licking County, Case No. 13-CA-58 17

{¶69} "The Double Jeopardy Clause of the federal constitution 'protects only

against the imposition of multiple criminal punishments for the same offense, * * * and

then only when such occurs in successive proceedings.' (Citations omitted.) Hudson v.

United States, 522 U.S. 93, 99, 118 S.Ct. 488 (1997); State v. Raber, 134 Ohio St.3d

350, 2012–Ohio–5636, 982 N.E.2d 684, ¶ 24; State v. Martello, 97 Ohio St.3d 398,

2002–Ohio–6661, ¶ 8. 'If pursued in a single proceeding, * * * multiple punishment may

constitutionally be imposed [.]' State v. Gustafson, 76 Ohio St.3d 425, 437, 668 N.E.2d

435(1996).

{¶70} "D.R. relies primarily on State v. Raber in which the Ohio Supreme Court

held that the trial court lacked authority to re-open sentencing to classify the defendant

a sex offender more than one year after it imposed its original sentence. 134 Ohio St.3d

350, 2012–Ohio–5636, 982 N.E.2d 684, ¶ 4. The Supreme Court further stated,

'Because sex-offender registration is now punitive in nature, double-jeopardy

protections barred the court from subsequently classifying Raber as a Tier I sex

offender at a new proceeding held more than a year after its original sentence.' Id.

{¶71} "However, in the case at bar, the court's ability to classify D.R. arose from

the clause of R.C. 2152.83(B)(1) granting the court jurisdiction to issue an order

classifying D.R. as part of the dispositional order. State ex rel. Jean–Baptiste v. Kirsch,

134 Ohio St.3d 421, 2012–Ohio–5697, 983 N.E.2d 302, ¶ 24. In Jean–Baptiste, Jean–

Baptiste was released from custody on January 18, 2010, which was also the date of

his 21st birthday. Id . ¶ 5. However, the JOR classification hearing did not occur until

February 8, 2010. Id. In Jean–Baptiste, the Supreme Court observed,
Licking County, Case No. 13-CA-58 18

{¶72} "'Because Jean–Baptiste was adjudicated a delinquent child and was

committed to a secure facility, the statute [R.C. 2152.83(A)(1) ] is clear that the court

must issue the order classifying the child as a juvenile-offender registrant at the time the

child is released from the secure facility—not afterward. The statute is logical, given that

the juvenile-offender registrant may be subject to certain registration requirements upon

his or her release into the community. Because Jean–Baptiste was released on the day

that he turned 21 and because R.C. 2152.83 specifies that classification must occur

when a child is released from a secure facility, the juvenile court patently and

unambiguously lacks jurisdiction to classify Jean–Baptiste after his 21st birthday, when

he was no longer a child.' Id., ¶ 28.

{¶73} "In the case at bar, D.R. had not attained the age of 21 at the time of the

classification and was therefore still subject to the jurisdiction of the juvenile court. Like

R.C. 2152.83(A)(1), the statute by which D.R.'s hearing was held in the case at bar,

R.C. 2152.83(B), provides that the court may issue the order classifying the child as a

JOR at the time the child is released from the secured facility. This Court found the

classification process was not a new proceeding but rather a continuation of the original

delinquency case. In re B.D., 5th Dist Guernsey No. 11–CA–27, 2012–Ohio–2223, 970

N.E.2d 1178, ¶ Accordingly, multiple punishments have not been imposed in D.R.'s

case in subsequent proceedings. (Footnote omitted.)

{¶74} "We note the Ohio Supreme Court has recognized a split between

appellate districts on when the classification hearing must occur and has certified the

following question: 'If a court commits a child to a secure facility, does R.C.
Licking County, Case No. 13-CA-58 19

2152.83(B)(1) permit the court to conduct a classification hearing at the time of

disposition?' In re I.A., 134 Ohio St.3d 1447, 2013–Ohio–347, 982 N.E.2d 726."

{¶75} "D.R.'s second assignment of error is overruled."

{¶76} In accordance with this Court's holding in In re D.R., supra, Appellant's

second and third assignments of error are overruled.

IV.

{¶77} In the fourth assignment of error, Appellant maintains based upon

cumulative errors in the trial court's classification D.S. he was denied the effective

assistance of trial counsel. We disagree.

{¶78} To succeed on a claim of ineffectiveness, an appellant must satisfy a two-

prong test. Initially, an appellant must show trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’ “ Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective assistance in

any given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel

acted “outside the wide range of professionally competent assistance.” Id. at 690.

{¶79} Even if an appellant shows counsel was incompetent, the appellant must

then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong,

the appellant must show that “there is a reasonable probability that, but for counsel's
Licking County, Case No. 13-CA-58 20

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. The United States Supreme Court and the Ohio Supreme

Court have held a reviewing court “need not determine whether counsel's performance

was deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.

Accordingly, we will direct our attention to the second prong of the Strickland test. In re

Huffman, 5th Dist. Stark No.2005–CA–00107, 2005–Ohio–4725, ¶ 22.

{¶80} Based upon our analysis and disposition of Appellant's first, second and

third assignments of error, we do not find Appellant has demonstrated the ineffective

assistance of trial counsel in that he has not shown the outcome of the classification

hearing would have been different but for any presumed error.

{¶81} The fourth assignment of error is overruled.

{¶82} Appellant D.S.'s classification as a Tier II Juvenile Sex Offender Registrant

in the Licking County Court of Common Pleas, Juvenile Division, is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur