[Cite as In re D.B., 2013-Ohio-496.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98698
IN RE: D.B.
A Minor Child
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 11120458
BEFORE: E.A. Gallagher, J., Keough, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: February 14, 2013
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
BY: Sheryl A. Trzaska
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE, C.S.E.A.
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Juvenile appellant D.B. appeals the juvenile court’s order classifying D.B.
as a Tier I juvenile sex offender registrant. Appellant asserts that the trial court acted in
violation of R.C. 2152.83 when it classified him at the time of his juvenile disposition
rather than at the time he was released from his commitment to a secure facility.
Appellant further argues that the juvenile sex offender requirements under R.C. 2152.83
are an unconstitutional punishment in contravention of juvenile court jurisdiction, that
the trial court imposed an incorrect registration period and that his attorney rendered
ineffective assistance of counsel. For the following reasons, we reverse the judgment of
the juvenile court.
{¶2} D.B. admitted to being delinquent as to the charge of importuning in
violation of R.C. 2907.07(A), a felony of the third degree if committed by an adult.
D.B. was fifteen years old at the time of the offense. During disposition, the trial court
committed D.B. to the ODYS for a minimum period of six months and a maximum
period until D.B.’s 21st birthday. The trial court also classified D.B. as a Tier I sex
offender. D.B.’s attorney did not object to the classification designation.
{¶3} In his first assignment of error, D.B. argues that the trial court erred in
classifying him as a Tier I sex offender at the time of disposition rather than waiting and
considering classification at the time of D.B.’s release from ODYS.
{¶4} R.C. 2152.83 governs the classification of a child as a juvenile sex
offender registrant and provides in relevant part:
(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:
(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.
(b) The child was fourteen or fifteen years of age at the time of committing
the offense.
(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.
(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:
(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;
(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
2152.831of 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.
{¶5} In construing the language of R.C. 2152.83(B)(1), this court has held that,
“the General Assembly intended the trial court to wait until the delinquent is released
from a secured facility before holding the [classification] hearing.” In Re: C.L.M., 8th
Dist. No. 97980, 2012-Ohio-5175, ¶ 9. In that case, we interpreted R.C. 2152.83 as
follows:
If a juvenile is adjudged delinquent for a sexually oriented offense or a
child-victim oriented offense; the delinquent was fourteen or fifteen years
of age at the time of committing the offense; and the trial court is not
otherwise required by statute to classify the delinquent as a sex offender,
then the trial court has discretion as to whether to make a further finding
that the delinquent is a sex offender. But once the trial court decides it
wants to make such a finding, it must first hold a hearing and consider all
relevant statutory factors before making the determination. If the
delinquent has been sent to a secured facility for his offense, the trial court
must wait until the delinquent’s release before holding the hearing, and
must consider the “effectiveness of the disposition”and “the treatment
provided for the child placed in a secure setting.” After the hearing, the
trial court must decide whether or not to issue an order classifying the child
a juvenile offender registrant.
Id. at ¶ 11, citing R.C. 2152.83(B)(1), (B)(2) and (D)(6).
{¶6} There is no dispute that the provisions of R.C. 2152.83(B)(1) apply to D.B.
We conclude that the trial court erred in making the sex-offender classification at the
dispositional hearing and that the hearing must be held upon D.B.’s release from ODYS.1
1
We further note that the trial court, in classifying D.B. as a Tier I sex
offender, incorrectly ordered him to comply with the registration requirements for a
period of 15 years. R.C. 2950.07(B)(3) provides a 10-year registration period for a
delinquent child who is classified as a Tier I sex offender/child-victim offender
registrant.
{¶7} Appellant’s first assignment of error is sustained. We reverse the trial
court’s final judgment only insofar as it classifies D.B. as a Tier I sex offender. In light
of our resolution of appellant’s first assignment of error, we find appellant’s remaining
assignments of error to be moot.
{¶8} Judgment reversed and the cause remanded for further proceedings
consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR