In re B.D.

[Cite as In re B.D. , 2012-Ohio-2223.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
IN THE MATTER OF: B.D. : Hon. W. Scott Gwin, P.J.
A DELINQUENT CHILD : Hon. Sheila G. Farmer, J.
: Hon. Julie A. Edwards, J.
:
:
: Case No. 11-CA-27
:
:
: OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Guernsey County
Court of Common Pleas, Juvenile Division,
Case No. 08JA00536

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 16, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARGARET BOYD LAPLANTE ANDREW J. WARHOLA
Assistant Prosecuting Attorney 110 North 7th Street
139 West Eighth Street Cambridge, OH 43725
Cambridge, OH 43725
[Cite as In re B.D. , 2012-Ohio-2223.]

Gwin, P.J.

{¶1} B.D., who was previously adjudicated a delinquent child, appeals a

judgment of the Court of Common Pleas, Juvenile Division, of Guernsey County, Ohio,

which conducted a sex offender classification hearing and issued a classification order

after appellant’s 21st birthday. Appellant assigns two errors to the trial court:

{¶2} “I. THE GUERNSEY COUNTY JUVENILE COURT ERRED WHEN IT

CONDUCTED A SEX OFFENDER CLASSIFICATION HEARING AND CLASSIFIED

B.D. AS A TIER III JUVENILE OFFENDER REGISTRANT AFTER HE HAD TURNED

TWENTY-ONE YEARS OF AGE.

{¶3} “II. THE GUERNSEY COUNTY JUVENILE COURT COMMITTED

REVERSIBLE ERROR WHEN IT FAILED TO CONDUCT A SEXUAL OFFENDER

CLASSIFICATION HEARING IMMEDIATELY UPON THE RELEASE OF THE

APPELLANT FROM THE GUERNSEY COUNTY JAIL, PURSUANT TO R.C. SECTION

2152.83(A)(1).”

{¶4} On September 8, 2008, the State filed a juvenile complaint against

appellant alleging four counts of rape and one count of sexual imposition. On February

2, 2009, appellant made an admission of true to three counts of rape. The State

dismissed the other charges and the court found him to be delinquent. The trial court

then held a dispositional hearing and placed appellant in the legal custody of the Ohio

Department of Youth Services for a minimum period of one year and a maximum period

not to exceed his 21st birthday. The placement was suspended on condition that

appellant serve 90 days on each count, concurrently, in the county jail after he

graduated from high school. The court also ordered appellant to complete the SAY
Guernsey County, Case No. 11-CA-27 3

Program and safety planning and ordered appellant’s father to participate in the parent

component of the programs. The court placed appellant on probation and ordered him

to have no contact with the victims. The court stated it would set the matter for hearing

on the sexual offender registration “after the Court has been notified that the child has

successfully completed the SAY Program”.

{¶5} Appellant was released from the Guernsey County Jail in September

2009, and in November 2010 he completed the SAY Program. On January 19, 2011,

prior to appellant’s 21st birthday, the State moved the court to schedule the sexual

offender classification hearing. Appellant turned 21 years old on February 2, 2011. The

court scheduled the hearing for February 23, 2011, but it was continued to March 22,

2011, continued a second time, and finally conducted on June 28, 2011.

I

{¶6} In his first assignment of error, appellant argues the court lost jurisdiction

over him when he turned 21 years of age.

{¶7} The Ohio Constitution grants juvenile courts exclusive original jurisdiction

over delinquent minors. The Ohio Revised Code also sets out the jurisdiction of the

juvenile court in R.C. 2152.02. It states:

(C)(6) The juvenile court has jurisdiction over a person who is

adjudicated a delinquent child or juvenile traffic offender prior to

attaining eighteen years of age until the person attains twenty-one

years of age, and, for purposes of that jurisdiction related to that

adjudication, except as otherwise provided in this division, a person

who is so adjudicated a delinquent child or juvenile traffic offender
Guernsey County, Case No. 11-CA-27 4

shall be deemed a “child” until the person attains twenty-one years

of age. ***

{¶8} R.C. 2152.83 provides if the court adjudicates a child a delinquent child

and commits the child to the custody of a secure facility, then at the time the child is

released from the secure facility, the court must issue an order regarding the child’s

juvenile offender registrant status. Prior to issuing the order, the trial court must

conduct a hearing to determine whether and how to classify the child. R.C. 2152.831.

{¶9} Appellant argues the juvenile court has no jurisdiction to conduct a sexual

offender classification hearing regarding an adult, because the statute refers to a “child”

who has been adjudicated a delinquent child, and the court loses jurisdiction over those

children when they turn 21 years old. Although the State had moved for the hearing

before appellant’s birthday, the court did not conduct the hearing until more than four

months after he turned 21.

{¶10} The Court of Appeals for Ross County has held a court retained

jurisdiction over a juvenile offender even though he had turned 21 years old, but the

issue was whether the juvenile court retained jurisdiction to modify or enforce a

classification entered before the child’s 21st birthday. The court reached this decision

given the particular circumstances of the case, namely that the child had turned 21

while the classification was on appeal. The appeals court remanded the case and

informed the juvenile court it could re-impose the same classification. The appeals court

found because the sexual classification order was originally entered before the child’s

21st birthday, the court retained jurisdiction on remand. In Re: A.R.R., 194 Ohio App. 3d

40, 2011-Ohio-1186, 954 N.E. 2d 1213 (Fourth District) at ¶¶7-8. The court did not
Guernsey County, Case No. 11-CA-27 5

express an opinion regarding whether a juvenile court could enter an original order after

the child turned 21 years old. This case is easily distinguishable from the case at bar.

{¶11} More on point is In Re: G.M., 188 Ohio App. 3d 318, 2010-Ohio-2295, 935

N.E. 2d 459 (Third District), wherein the Court of Appeals for Defiance County held a

court loses jurisdiction to classify an adjudicated delinquent child as a sex offender

registrant after he has attained the age of 21. The court particularly noted the trial court

had notice G.M.’s 21st birthday was approaching, but failed to schedule the hearing until

later.

{¶12} However, based upon the Ohio Supreme Court’s case State ex rel. N.A. v.

Cross, 125 Ohio St. 3d 6, 2010-Ohio-1471, 925 N.E. 2d 614, we disagree with the

reasoning in the G.M. case.

{¶13} In Cross, the Ohio Supreme Court reviewed a petition for writ of

prohibition to prevent the juvenile court judge from proceeding with an adjudicatory

hearing in a delinquency case, after N.A. had turned 21 years old. N.A. was charged

with rape. The Supreme Court refused to issue the petition, finding the judge did not

patently and unambiguously lack jurisdiction to proceed with the delinquency case, and

because N.A. had an adequate remedy of law, in a direct appeal. Cross at ¶ 14, citation

deleted.

{¶14} Most significantly, the Supreme Court found even though N.A. was over

21 years old, the delinquency proceeding was still important because if the juvenile

court adjudicated him to be a delinquent child based on the rape offense, he would be

subject to the juvenile offender registration provisions, which do not terminate at age 21.

Id. ¶ 13. Clearly the Supreme Court anticipated the juvenile court would conduct the
Guernsey County, Case No. 11-CA-27 6

hearing and make the sexual offender registration determination even though N.A. had

turned 21. The court found a juvenile court has jurisdiction to conduct all the hearings

authorized or required regarding a child who has been adjudicated a delinquent child.

Id.

{¶15} Here, the trial court found the classification process was not a new

proceeding but rather a continuation of the original delinquency case. We agree. We

conclude the trial court had jurisdiction over appellant to complete the required statutory

proceedings in his juvenile case even though he was over 21 years old.

{¶16} The first assignment of error is overruled.

II.

{¶17} In his second assignment of error, appellant argues the trial court erred

when it did not conduct the sexual offender classification hearing at the time he was

released from the Guernsey County Jail, or after he completed the SAY program. The

Revised Code requires the juvenile court to conduct the sexual offender classification

hearing “at the time of the child’s release from the secure facility”. Appellant argues he

was sentenced to jail for 90 days, and was released in September 2009. The court did

not conduct the hearing upon his release, nor after he was terminated from the SAY

Program in December 2010. The State filed the motion for the classification hearing

over a month later, but still before his 21st birthday. The hearing was originally

scheduled for three weeks after he turned 21, but did not actually take place for four

more months.

{¶18} The statute does not specify a time period within which the court must

conduct the hearing, but only provides it should occur “at the time of the child’s release”.
Guernsey County, Case No. 11-CA-27 7

Courts have generally construed nonspecific language as providing a reasonable time.

See, e.g. State v. Brown, 186 Ohio App. 3d 309, 2010-Ohio-405, 927 N.E.2d 1133, ¶

24, citations to four other districts deleted, (Crim. R. 33); State v. Peek, 9th Dist. No.

10CA0040, 2011-Ohio-3624, ¶ 6, citations deleted (speedy trial waivers); Hall v. U.S.

Bank National Association, 1st Dist. No. C-040642, 2006-Ohio-303, ¶ 7, citing Marino v.

Hootman, 5th Dist. No.2003 AP 06 0044, (contracts); Ulrich v. Mercedes-Benz USA,

L.L.C., 9th Dist. No 25929, 2012-Ohio-1623 ¶18, citations deleted (R.C. 1345.75).

{¶19} R.C. 2152.83 states the rationale for delaying the hearing until the child is

released from the secure facility is so the court can review the effectiveness of the

disposition and of any treatment provided to the child. After his release from jail,

appellant was on probation until he completed the SAY Program. The court’s order of

March 24, 2009 specified it would not conduct the registration hearing until after

appellant completed the SAY program. We find the trial court did not err in according

appellant the extra time to finish the SAY Program before reviewing his progress, rather

than holding the hearing immediately after appellant was released from jail.

{¶20} The approximately six-month time lapse between appellant’s completion

of the SAY program and the hearing is more problematic. The court’s original

dispositional order stated it would conduct the hearing after the court was notified

appellant had completed the program.

{¶21} Appellant moved the court to dismiss the case based upon jurisdiction, but

did not object to the continuances or raise the issue of timeliness to the court on the

record. The court continued the hearing on March 22, 2011 in part so the State could

respond to appellant’s motion to dismiss.
Guernsey County, Case No. 11-CA-27 8

{¶22} It is certainly very important to conduct the classification hearing as

promptly as possible, because any registration requirements the court might impose are

intended to protect society upon the child’s release back into the community. Likewise,

the appellant has an interest in having the matter finally resolved in a timely manner.

However, on the facts and circumstances of this case we cannot find the delay in

conducting the hearing was unreasonable.

{¶23} The second assignment of error is overruled.

{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, of Guernsey County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. JULIE A. EDWARDS

WSG:clw 0502
[Cite as In re B.D. , 2012-Ohio-2223.]

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: B.D. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 11-CA-27

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Juvenile Division, of Guernsey County, Ohio, is affirmed.

Costs to appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. JULIE A. EDWARDS