In re B.T.

[Cite as In re B.T., 2011-Ohio-5299.]

COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN RE: B.T.,

A MINOR CHILD

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.

Case No. 11-CA-3

OPINION

CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of
Common Pleas, Juvenile Division Case No.
2010 JD 00182

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 11, 2011

APPEARANCES:

For State of Ohio For B.T.

CHARLES HOWLAND AMANDA J. POWELL
Morrow County Prosecuting Attorney Office of the Ohio Public Defender
60 East High Street 250 East Broad Street, Suite 1400
Mount Gilead, Ohio 43338 Columbus, Ohio 43215
Hoffman, J.

(¶1) B.T., a juvenile, appeals his disposition entered by the Morrow County

Court of Common Pleas, Juvenile Division. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE

(¶2) On August 5, 2010, Appellant entered an admission to one count of rape,

in violation of R.C. 2907.02(A)(1)(b). On September 12, 1010, the trial court conducted

a dispositional hearing, during which the court adjudicated Appellant a Tier III juvenile

offender registrant. The trial court further ordered Appellant subject to community

notification requirements.

(¶3) On November 5, 2010, the trial court, nunc pro tunc, ordered the local

school district be responsible for Appellant’s education while incarcerated.

(¶4) On November 17, 2010, the trial court again corrected its entry to indicate

Appellant is not a public registry qualified juvenile offender registrant, but a Tier III

juvenile offender registrant, subject to community notification.

(¶5) Appellant now appeals, assigning as error:

(¶6) “I. THE MORROW COUNTY JUVENILE COURT ABUSED ITS

DISCRETION WHEN IT FOUND THAT B.T.’S CLASSIFICATION AS A TIER III

JUVENILE SEX OFFENDER REGISTRANT WAS MANDATORY IN VIOLATION OF

R.C. 2950.01(E)-(G).

(¶7) “II. THE TRIAL COURT ERRED WHEN IT ORDERED B.T. TO BE

SUBJECT TO COMMUNITY NOTIFICATION. R.C. 2152.82(B)(4); R.C. 2950.11 (F)(2).
 (¶8) “III. THE MORROW COUNTY JUVENILE COURT ERRED WHEN IT

IMPROPERLY NOTIFIED B.T. THAT, AS A JUVENILE SEX OFFENDER

REGISTRANT, HE WAS PROHIBITED FROM LIVING WITHIN ONE THOUSAND

FEET FROM A SCHOOL, IN VIOLATION OF R.C. 2950.034(A).

(¶9) “IV. B.T. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION, WHEN DEFENSE COUNSEL FAILED TO FAMILIARIZE HIMSELF

WITH OHIO’S JUVENILE OFFENDER CLASSIFICATION PROCEDURES.”

I.

(¶10) In the first assignment of error, Appellant argues the trial court abused its

discretion in finding his classification as a Tier III juvenile sex offender registrant

mandatory. We disagree.

(¶11) At the September 12, 2010 dispositional hearing, the trial court stated,

(¶12) “THE COURT: Well, before that, let me backup just a bit and because of

the nature of this offense, it involves a classification as a sex offender and I don’t think

there is any question it is tier 3 and depending upon what the Court does with respect to

disposition, there could be a review of that, as I understand it, out into the future multiple

times conceivably. I just want to make sure that there is no misunderstanding on the

record as to that because I’m supposed to make this determination either prior to or

simultaneous, simultaneously with the disposition here today. So as far as the State is

concerned, this is your understanding, a tier 3?

(¶13) “MR. PHILLIPS: Yes, your Honor.
 (¶14) “***

(¶15) “THE COURT: Then obviously the juvenile, now an adult but still subject

to Juvenile Court jurisdiction, ‘[B.T.] is found to be a tier 3 sex offender.’ And I guess

they have it as a slash, as I understand it, it is a child victim offender registrant as well.

(¶16) “Now, before I go any further let me explain some things when it comes to

that. As a tier 3 sex offender registrant, I have to determine whether you are subject to

or not subject to community notification. Given the circumstances my usual normal

approach is to, unless there is some good reason not to, to have the---make it subject to

community notification, despite what I do with respect to disposition and then modify

that if it appears to be either necessary, reasonable, earned, whatever, the case may

be.***”

(¶17) Tr. at 10-12.

(¶18) While the trial court did not have discretion as to whether to designate

Appellant a juvenile offender registrant pursuant to R.C. 2152.82(A) due to his prior sex

offense conviction, the Tier III classification was not mandatory and the trial court was

required to exercise its discretion in the determination. In re J.O. 2010-Ohio-4296.

Senate Bill 10 gives juvenile courts discretion to determine which tier level to assign a

juvenile sex offender, regardless of the sexually oriented offense the child committed.

Id. The court must consider multiple factors, including the likelihood of recidivism. In re

Adrian R. 2008-Ohio-6581.

(¶19) Upon review of the record herein, we find the trial court properly exercised

its discretion in determining Appellant to be a Tier III sex offender. The trial court

properly understood and set forth its “task to determine the appropriate classification”
for Appellant. In light of Appellant’s prior sex offense and the factual circumstances in

this case, the trial court did not abuse its discretion in classifying Appellant a Tier III

juvenile offender registrant. Specifically, we find the trial court’s statement concerning

“the nature of this offense” related to the underlying facts of the case as opposed to a

mandatory classification based upon the type of offense committed.

(¶20) The first assignment of error is overruled.

II.

(¶21) In the second assignment of error, Appellant argues the trial court erred in

ordering he be subject to community notification. Specifically, Appellant maintains the

trial court did not make any findings in support of a valid order of community notification.

(¶22) R.C. 2152.82 (B)(4) reads:

(¶23) “(B) An order required under division (A) of this section shall be issued at

the time the judge makes the order of disposition for the delinquent child. Prior to

issuing the order required by division (A) 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. If the court determines that the delinquent child

to whom the order applies is a tier III sex offender/child-victim offender and the child is

not a public registry-qualified juvenile offender registrant, the judge may impose a

requirement subjecting the child to the victim and community notification provisions of

sections 2950.10 and 2950.11 of the Revised Code. When a judge issues an order

under division (A) of this section, all of the following apply:

(¶24) “***
 (¶25) “(4) If the court determines that the delinquent child to whom the order

applies is a tier III sex offender/child-victim offender, if the child is not a public registry-

qualified juvenile offender registrant, and if the judge imposes a requirement subjecting

the child to the victim and community notification provisions of sections 2950.10 and

2950.11 of the Revised Code, the judge shall include the requirement in the order.”

(¶26) R.C. 2950.11(F) reads:

(¶27) “(F)(1) Except as provided in division (F)(2) of this section, the duties to

provide the notices described in divisions (A) and (C) of this section apply regarding any

offender or delinquent child who is in any of the following categories:

(¶28) “(a) The offender is a tier III sex offender/child-victim offender, or the

delinquent child is a public registry-qualified juvenile offender registrant, and a juvenile

court has not removed pursuant to section 2950.15 of the Revised Code the delinquent

child's duty to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the

Revised Code.

(¶29) “(b) The delinquent child is a tier III sex offender/child-victim offender who

is not a public-registry qualified juvenile offender registrant, the delinquent child was

subjected to this section prior to the effective date of this amendment as a sexual

predator, habitual sex offender, child-victim predator, or habitual child-victim offender,

as those terms were defined in section 2950.01 of the Revised Code as it existed prior

to the effective date of this amendment, and a juvenile court has not removed pursuant

to section 2152.84 or 2152.85 of the Revised Code the delinquent child's duty to comply

with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.
 (¶30) “(c) The delinquent child is a tier III sex offender/child-victim offender who

is not a public registry-qualified juvenile offender registrant, the delinquent child was

classified a juvenile offender registrant on or after the effective date of this amendment,

the court has imposed a requirement under section 2152.82, 2152.83, or 2152.84 of the

Revised Code subjecting the delinquent child to this section, and a juvenile court has

not removed pursuant to section 2152.84 or 2152.85 of the Revised Code the

delinquent child's duty to comply with sections 2950.04, 2950.041, 2950.05, and

2950.06 of the Revised Code.

(¶31) “(2) The notification provisions of this section do not apply to a person

described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after

considering the factors described in this division that the person would not be subject to

the notification provisions of this section that were in the version of this section that

existed immediately prior to the effective date of this amendment. In making the

determination of whether a person would have been subject to the notification

provisions under prior law as described in this division, the court shall consider the

following factors:

(¶32) “(a) The offender's or delinquent child's age;

(¶33) “(b) The offender's or delinquent child's prior criminal or delinquency

record regarding all offenses, including, but not limited to, all sexual offenses;

(¶34) “(c) The age of the victim of the sexually oriented offense for which

sentence is to be imposed or the order of disposition is to be made;

(¶35) “(d) Whether the sexually oriented offense for which sentence is to be

imposed or the order of disposition is to be made involved multiple victims;
 (¶36) “(e) Whether the offender or delinquent child used drugs or alcohol to

impair the victim of the sexually oriented offense or to prevent the victim from resisting;

(¶37) “(f) If the offender or delinquent child previously has been convicted of or

pleaded guilty to, or been adjudicated a delinquent child for committing an act that if

committed by an adult would be, a criminal offense, whether the offender or delinquent

child completed any sentence or dispositional order imposed for the prior offense or act

and, if the prior offense or act was a sex offense or a sexually oriented offense, whether

the offender or delinquent child participated in available programs for sexual offenders;

(¶38) “(g) Any mental illness or mental disability of the offender or delinquent

child;

(¶39) “(h) The nature of the offender's or delinquent child's sexual conduct,

sexual contact, or interaction in a sexual context with the victim of the sexually oriented

offense and whether the sexual conduct, sexual contact, or interaction in a sexual

context was part of a demonstrated pattern of abuse;

(¶40) “(i) Whether the offender or delinquent child, during the commission of the

sexually oriented offense for which sentence is to be imposed or the order of disposition

is to be made, displayed cruelty or made one or more threats of cruelty;

(¶41) “(j) Whether the offender or delinquent child would have been a habitual

sex offender or a habitual child victim offender under the definitions of those terms set

forth in section 2950.01 of the Revised Code as that section existed prior to the effective

date of this amendment;

(¶42) “(k) Any additional behavioral characteristics that contribute to the

offender's or delinquent child's conduct.”
 (¶43) (Emphasis added.)

(¶44) While the statute requires the trial court to consider the factors set forth

above, the statute does not require the trial court to make specific findings of fact in

order to justify community notification. The statutes vest discretion with the trial court in

making the determination. Based upon the factual circumstances in this case, we find

the trial court did not abuse its discretion in ordering Appellant subject to community

notification.

(¶45) The second assignment of error is overruled.

III.

(¶46) In the third assignment of error, Appellant asserts the trial court erred in

notifying him he was prohibited from living within one thousand feet of a school, in

violation of R.C. 2950.034(A).

(¶47) The trial court stated at the dispositional hearing,

(¶48) “THE COURT: The other thing I need to mention, they haven’t changed

the law on this yet to my knowledge and that is that should you move into an area

where there are schools, you are not to move within one thousand feet of any school. If

you are already living there I guess they did change the interpretation of the law that

you can stay there, I’m not sure where your residence currently is, if it is within a

thousand feet of a school.”

(¶49) Tr. at 13-14.

(¶50) The trial court’s instruction to Appellant he is not to move within one

thousand feet of any school, regardless of whether it is or is not contrary to law, is

advisory in nature and not part of Appellant’s sentence. Unless and until Appellant is
charged with a violation of the statute, we find there is no actual case in controversy.

Ohio courts have long recognized a court should not entertain jurisdiction over cases

without actual controversies, Tschantz v. Ferguson (1991), 57 Ohio St.3d 131.

Therefore, any opinion issued by this Court would be advisory in nature.

(¶51) The third assignment of error is overruled.

IV.

(¶52) In the fourth assignment of error, Appellant asserts he was denied the

effective assistance of counsel when counsel failed to familiarize himself with Ohio’s

juvenile offender classification procedures.

(¶53) Our standard of review for an ineffective assistance claim is thus set forth

in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's

assistance was ineffective; i.e., whether counsel's performance fell below an objective

standard of reasonable representation and was violative of any of his essential duties to

the client. If we find ineffective assistance of counsel, we must then determine whether

or not the defense was actually prejudiced by counsel's ineffectiveness such that the

reliability of the outcome of the proceeding is suspect. This requires a showing that

there is a reasonable probability that but for counsel's unprofessional error, the outcome

of the proceeding would have been different. Id. Because of the difficulties inherent in

determining whether effective assistance of counsel was rendered in any give case, a
strong presumption exists that counsel's conduct fell within the wide range of

reasonable professional assistance. Bradley at 142, 538 N.E.2d 373.

(¶54) Upon our review of the entire record of this matter, we find Appellant

cannot establish he was prejudiced by any of trial counsel's actions or inactions. The

record does not demonstrate Appellant’s counsel was unfamiliar with the law applicable

herein, nor does the record demonstrate the outcome of the proceedings would have

been otherwise but for counsel’s alleged shortcomings regarding juvenile classification

procedures.

(¶55) The fourth assignment of error is overruled.

(¶56) Appellant’s dispositional order entered by the Morrow County Court of

Common Pleas, Juvenile Division is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN

s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
 IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN RE: B.T., :
:
A MINOR CHILD :
:
:
:
: JUDGMENT ENTRY
:
:
: Case No. 11-CA-3

For the reasons stated in our accompanying Opinion, Appellant’s dispositional

order entered by the Morrow County Court of Common Pleas, Juvenile Division is

affirmed. Costs to Appellant.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN

s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY