In re N.D.

[Cite as In re N.D., 2021-Ohio-4506.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN RE: N.D., A MINOR CHILD : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
:
: Case No. 21 CA 0040
: 21 CA 0041
:
:
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, case
nos. A2017-0471 and A2017-0439

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 17, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM HAYES OFFICE OF THE OHIO PUBLIC
DEFENDER
LICKING CO. PROSECUTOR LAUREN HAMMERSMITH
PAULA M. SAWYERS Assistant State Public Defender
20 South Second St., Fourth Floor 250 East Broad St., Suite 1400
Newark, OH 43055 Columbus, OH 43215
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 2

Delaney, J.

{¶1} Appellant N.D. appeals from the April 30, 2021 Judgment Entry of the

Licking County Court of Common Pleas, Juvenile Division. Appellee is the state of Ohio.

{¶2} The instant appeals are related but not consolidated. This matter arose

from two separate juvenile court case numbers: AXXXXXXXX and AXXXXXXXX. The briefs

and sole assignment of error in both cases are identical.

FACTS AND PROCEDURAL HISTORY

{¶3} In case number AXXXXXXXX, appellant was adjudicated to be a delinquent

child upon three counts of gross sexual imposition (G.S.I.), all felonies of the third degree

pursuant to R.C. 2907.05(A)(4), and one count of G.S.I. pursuant to R.C. 2907.05(A)(1),

a felony of the fourth degree. In case number AXXXXXXXX, appellant was adjudicated to

be a delinquent child upon one count of G.S.I., a felony of the third degree pursuant to

R.C. 2907.05(A)(4). Each count is a “sexually oriented offense” pursuant to R.C.

2950.01(A)(1). Four of the counts are subject to discretionary classification pursuant to

R.C. 2152.83(B).

{¶4} A single count--Count VII in case number AXXXXXXXX—rendered appellant

subject to mandatory classification pursuant to R.C. 2152.83(A)(1) because the offense

occurred between the dates of September 1, 2016 to March 1, 2017, when appellant was

16 to 17 years old.

{¶5} A dispositional hearing was held on November 3, 2017, and appellant was

classified as a Tier II juvenile sex offender registrant for a period of 20 years with in-

person verification every 180 days.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 3

{¶6} On January 9, 2020, appellant’s classification was modified following a

classification review hearing after his discharge from a secure facility. Appellant was then

classified as a Tier I juvenile sex offender registrant for a period of 10 years with in-person

verification annually.

{¶7} Appellant was released from parole on September 16, 2020.

Motion and hearing for declassification

{¶8} Appellant filed a motion for declassification pursuant to R.C. 2152.84 and

the matter proceeded to an evidentiary hearing on April 29, 2021. The following evidence

is adduced from the record of the hearing.

{¶9} The trial court noted the following evidence submitted by the parties:

* * * *.

I’ve recently reviewed the contents of each of the files before

me, including the motion filed on behalf of [appellant], each progress

review summary, the release decision summary, and discharge

decision summary all previously submitted to the Court by the Ohio

Department of Youth Services regarding [appellant]. I have also

reviewed all written reports submitted to this Court by the Probation

Department included in the written report of Probation Officer Lindsay

Rogers filed on April 27th, 2021, recommending a continuation of

[appellant’s] current classification requirements.

And I have reviewed the notice of supplemental exhibit to

motion for declassification that was filed by [defense trial counsel] on

April 28th, 2021, being an email from [appellant’s] former parole
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 4

officer, * * * [and] a letter from [appellant’s] treatment provider at

Osterlen? * * * *.

T. 10-11.

{¶10} Appellee reiterated its position that it opposed appellant’s declassification.

T. 12.

{¶11} Appellant’s probation officer appeared and stated that in addition to the

written report she submitted, allegations existed that appellant contacted two of the

victims upon his release from detention and was dating a minor child as of the hearing

date. T. 12.

{¶12} The Victim Advocate noted the victims report ongoing trauma from

appellant’s offenses, and also stated appellant contacted two of the victims upon his

release from detention. The victims and their families collectively opposed appellant’s

declassification. T. 14.

{¶13} Appellant’s guardian ad litem (G.A.L.) opined appellant was statutorily

ineligible for declassification, but added that if the trial court deemed him eligible, she

supported declassification. The G.A.L. stated:

* * * *.

It’s my opinion that he has gone above and beyond what’s

been asked of him. He successfully completed treatment. He’s

become employed. He completed parole successfully; in fact, that

he had no violations. And I believe that if there had been some sort

of contact with the victim, I would have to believe that that would have

been reported to the parole officer upon his release from DYS.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 5

So at this time, I would be in support of that if the Court deems

that he is eligible.

* * * *.

T. 14-15.

{¶14} Appellant’s Father testified on his behalf. Father said appellant lives alone

in an apartment in Columbus, and Father and son for the same communications firm.

They install Wi-Fi and internet service. Someone observed appellant working in a

children’s hospital and reported him to security because they were aware of the instant

case. The employer did not fire appellant but instead transferred his work location. When

cross-examined about appellant’s current girlfriend, Father said she was 18 years old.

Exhibit: probation officer’s report of April 27, 2021

{¶15} Appellant’s probation officer testified at the hearing and provided a written

report dated April 27, 2021. The report is in the record for our review and we note the

following pertinent facts.

{¶16} Appellant applied for judicial release while committed to DYS, but his

request was denied because appellant was engaged in a consensual sexual relationship

with another youth in the facility, resulting in his removal from the program and not having

completed Phase 2 of substance abuse training.

{¶17} Appellant’s parole officer told probation that appellant did “fantastic” and

successfully completed parole, including graduating from high school, beginning an

apprenticeship with a heating and cooling provider, and engaging in aftercare services to

address problematic sexual behaviors.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 6

{¶18} Appellant first became involved in the juvenile justice system in 2015 when

he was placed on diversion for possession of criminal tools. The nature of the offense

was sending nude photos of himself and receiving photos of a peer-aged female.

Appellant was found to be in violation of the diversion contract when he was found in

possession of a cell phone which he used to access Facebook, send more nude photos

to a female via Snapchat, and to send a sexually-explicit note to a female at school.

These offenses occurred while appellant was on court supervision. Diversion was

terminated and he was placed on probation.

{¶19} In the instant G.S.I. cases, appellant offended against five victims ranging

in age from 5 years old to 15 years old. Appellant self-reported that each victim was

victimized two to three times with the exception of one.

{¶20} An element of physical force was involved in terms of appellant preventing

smaller victims from resisting such as grabbing the victim’s arm and forcing her to touch

his penis.

{¶21} Appellant did complete sex-offender-specific programming while at DYS.

He also continued in aftercare and worked on addressing problematic sexual behaviors.

{¶22} Appellant reported that he forced others to engage in sexual encounters.

His older victims asked him to stop on several occasions however their pleas were

ignored. He used physical force with at least one victim by forcefully taking that victim’s

hand and placing it on his penis. He did not consider how this made his victims feel and

the long-term effects that his actions could cause.

{¶23} Appellant displayed a history of sexual abuse and acting out as evidenced

by his prior court contact. During his court supervision his level of risk increased and then
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 7

continued when in a secured facility by engaging in a sexual relationship with another

youth knowing that it was against the policy causing him to be removed from the program.

He has only recently begun to display any remorse or empathy for his actions/victims.

{¶24} The report concludes:

* * * *.

At this time due to information above such as the age of all

but one of the victims being under the age of 13, the number of times

the abuse occurred, [the] fact that he has a history of inappropriate

sexual behaviors leading to multiple delinquency adjudications,

acting out sexually while in a secure placement, and displaying little

victim empathy, Probation Department would recommend that

[appellant] continued to register as a TIER I Juvenile Sex Offender

Registrant at this time.

* * * *.

Exhibit: parole officer’s email dated April 26, 2021

{¶25} Appellant offered an email from his parole officer as an exhibit at the

hearing. The email states the following in pertinent part:

* * * *.

My name is Kyle L. Dickinson Parole Officer for the Ohio

Department of Youth Services and I was the parole officer for

[appellant] from co 12/21/19 to 9/16/20. During that period of time

[appellant] complied with any and all that was requested of him.

Upon release [appellant] was placed in Springfield, Ohio, living with
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 8

his mother. [Appellant] enrolled in OIC and completed class work

allowing him to obtain his diploma. [Appellant] contacted Oesterlen

for Youth and was involved in Sex Offender counseling. His

counselor was Bob Hayes and he attended the entire time he lived

in Springfield and was terminated successfully by Mr. Hays. Bob

said that [appellant] was very knowledgeable concerning his flags

and triggers and had a solid plan of prevention and thought process

not to re-offend. [Appellant] was registered as a tier one sex offender

in Clark Co. he [sic] signed up with Andria Trego SORN Officer with

Clark Co. Sheriff’s Dept. phone number [XXX]. When [appellant] was

getting ready to be successfully terminated from parole he contacted

Officer Trego and asked about transferring his registration to Licking

County and she assisted him. [Appellant] completed his 20 hour[s]

of community service at the Clark County Humane Society, without

any complaint whatsoever. I met with [appellant] weekly either at his

home or at various work sites. [Appellant] was always willing to meet

with this writer and was always polite and pleasant. [Appellant] was

employed the entire time he was on parole aftercare. [Appellant]

took the initiative to find employment in heating and cooling. He

worked in Springfield and surrounding areas for [Heating and

Cooling Company]. [Appellant] obtained an apprenticeship with

them while he worked there. I met with [appellant] on the job on

several occasions and they said he did a good job.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 9

[Appellant] has successfully completed every aspect of his

parole above and beyond expectations.

* * * *.

{¶26} At the conclusion of the hearing, the trial court noted appellant was subject

to mandatory classification pursuant to R.C. 2152.83(A) and the effectiveness of his

disposition was subject to review pursuant to R.C. 2152.84 to determine the risk that

appellant might re-offend and to review the prior classification and tier level.

{¶27} The trial court did note that pursuant to R.C. 2151.84(A)(2), it was limited

to continuing appellant’s classification as a Juvenile Offender Registrant and the prior

determination as a Tier I sex offender. However, the trial court noted, “Regardless of

statutory limitations, based upon this Court’s review and the information presented, the

Court does find that [appellant]’s classification as a juvenile offender registrant and prior

determination as a Tier I sex offender shall continue.” T. 35-36.

{¶28} Appellant now appeals from the trial court’s decision to continue his

classification as a Tier I sex offender.

{¶29} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶30} “THE LICKING COUNTY JUVENILE COURT ERRED WHEN IT DENIED

N.D.’S MOTION FOR DECLASSIFICATION FROM THE JUVENILE SEX OFFENSE

REGISTRY, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION.”

ANALYSIS
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 10

{¶31} Appellant argues he was denied due process of law because he was

statutorily prevented from declassification as a Tier I juvenile sex offender. We disagree.

{¶32} In the instant case, the relevant count at issue is Count VII in case number

A2017047, rendering appellant subject to mandatory classification pursuant to R.C.

2152.83(A)(1) because the offense occurred when he was 16 to 17 years old. Appellant

argues that because R.C. 2152.84(A)(2)(c) prevents his declassification, he has been

denied due process.

Classification of juvenile sex offenders

{¶33} The Ohio Supreme Court provided a helpful overview of the classification

process for juvenile sex offenders in In re R.B., 162 Ohio St.3d 281, 2020-Ohio-5476, 165

N.E.3d 288, reconsideration denied sub nom. In re R.B, 160 Ohio St.3d 1511, 2020-Ohio-

6835, 159 N.E.3d 1167, at ¶ 4-5:

When a juvenile commits a sex offense, the juvenile court has

the ability to classify the juvenile as a sex offender. See generally

R.C. 2152.82 through 2152.86; 2007 Am.Sub.S.B. No. 10 (Ohio's

Adam Walsh Act). A juvenile who has been classified as a sex

offender has certain legal obligations, such as registering and

periodically verifying his address in person with the sheriff. See R.C.

2950.07. The frequency with which the juvenile must report and the

duration of his reporting requirements depend on the level of the

classification imposed. Id.

Unlike adult offenders, whose classification levels are based

solely on the underlying offense, see R.C. 2950.01, the juvenile court
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 11

has discretion to determine the appropriate classification for a

juvenile offender, see R.C. 2152.83(A)(2) and (B)(2). Additionally,

while adult classifications flow directly from the conviction and are

not subject to modification, the juvenile court retains jurisdiction to

review a juvenile offender's classification. The classification process

is set forth in a series of statutes (the “classification statutes”). The

juvenile court conducts a hearing at the time of the juvenile's

disposition, see R.C. 2152.83, and at the time the juvenile completes

the disposition, see R.C. 2152.84. After that, the juvenile may petition

the juvenile court for review every three or five years. See R.C.

2152.85.

{¶34} R.C. 2152.83 addresses the “initial classification hearing” in the words of

the Ohio Supreme Court. In re R.B., 162 Ohio St.3d 281, 2020-Ohio-5476, 165 N.E.3d

288, reconsideration denied sub nom. In re R.B, 160 Ohio St.3d 1511, 2020-Ohio-6835,

159 N.E.3d 1167, ¶ 8. In the instant case, appellant was subject to R.C. 2152.83(A)

because he was 16 or 17 years old at the time of the relevant offense.1 The trial court

1 R.C. 2152.83(A)(1) states:

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:
(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 Nos. 21 CA 0040 and 21 CA 0041 12

must notify the juvenile of his registration and reporting requirements. R.C. 2152.83(C)(3).

The court is also required to tell the juvenile that a second hearing will be held at the end

of his disposition pursuant to R.C. 2152.84 and that his classification may be modified or

terminated at that time. R.C. 2152.83(C)(3). R.C. 2152.83(E) provides that the initial

classification 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.”

{¶35} R.C. 2950.07 outlines the duration of a juvenile offender's duty to register.

For a juvenile classified as a Tier I offender, the duty to register lasts for 10 years; for a

Tier II juvenile offender, the obligation continues for 20 years; and a juvenile classified as

a Tier III offender must register for life. R.C. 2950.07(B). Further, “[t]he child's attainment

of eighteen or twenty-one years of age does not affect or terminate the order, and the

order remains in effect for the period of time described in this division.” R.C. 2152.83(E).

{¶36} The issue presented by the instant appeal involves appellant’s completion-

of-disposition hearing described in R.C. 2152.84. That section states in pertinent part:

(b) The child was sixteen or seventeen 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) 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.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 13

(A)(1) When a juvenile court judge issues an order under * * *

division (A) * * * of section 2152.83 of the Revised Code that

classifies a delinquent 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, upon

completion of the disposition of that child made for the sexually

oriented offense or the child-victim oriented offense on which the

juvenile offender registrant order was based, the judge or the judge's

successor in office shall conduct a hearing to review the

effectiveness of the disposition and of any treatment provided for the

child, to determine the risks that the child might re-offend, to

determine whether the prior classification of the child as a juvenile

offender registrant should be continued or terminated as provided

under division (A)(2) of this section, and to determine whether its

prior determination made 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 should be

continued or modified as provided under division (A)(2) of this

section.

(2) Upon completion of a hearing under division (A)(1) of this

section, the judge, in the judge's discretion and after consideration of

all relevant factors, including but not limited to, the factors listed in
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 14

division (D) of section 2152.83 of the Revised Code, shall do one of

the following as applicable:

(a) Enter an order that continues the classification of the

delinquent child as a juvenile offender registrant made in the prior

order issued under section 2152.82 or division (A) or (B) of section

2152.83 of the Revised Code and the prior determination included in

the order that 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, whichever is applicable;

(b) If the prior order was issued under division (B) of section

2152.83 of the Revised Code, enter an order that contains a

determination that the delinquent child no longer is a juvenile

offender registrant and no longer has a duty to comply with sections

2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code. An

order issued under division (A)(2)(b) of this section also terminates

all prior determinations that 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, whichever is applicable. Division

(A)(2)(b) of this section does not apply to a prior order issued under

section 2152.82 or division (A) of section 2152.83 of the Revised

Code.

(c) If the prior order was issued under section 2152.82 or

division (A) or (B) of section 2152.83 of the Revised Code, enter an
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 15

order that continues the classification of the delinquent child as a

juvenile offender registrant made in the prior order issued under

section 2152.82 or division (A) or (B) of section 2152.83 of the

Revised Code, and that modifies the prior determination made at the

hearing held pursuant to section 2152.831 of the Revised Code that

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, whichever is applicable. An order issued under division

(A)(2)(c) of this section shall not include a determination that

increases to a higher tier the tier classification of the delinquent child.

An order issued under division (A)(2)(c) of this section shall specify

the new determination made by the court at a hearing held pursuant

to division (A)(1) of this section 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, whichever is

applicable.

(B)(1) If a judge issues an order under division (A)(2)(a) of this

section that continues the prior classification of the delinquent child

as a juvenile offender registrant and the prior determination included

in the order that 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, whichever is applicable, the prior

classification and the prior determination shall remain in effect.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 16

(2) A judge may issue an order under division (A)(2)(c) of this

section that contains a determination that reclassifies a child from a

tier III sex offender/child-victim offender classification to a tier II sex

offender/child-victim offender classification or to a tier I sex

offender/child-victim offender classification.

A judge may issue an order under division (A)(2)(c) of this

section that contains a determination that reclassifies a child from a

tier II sex offender/child-victim offender classification. A judge may

not issue an order under that division that contains a determination

that reclassifies a child from a tier II sex offender/child-victim offender

classification to a tier III sex offender/child-victim offender

classification.

A judge may not issue an order under division (A)(2)(c) of this

section that contains a determination that reclassifies a child from a

tier I sex offender/child-victim offender classification to a tier II sex

offender/child-victim offender classification or to a tier III sex

offender/child-victim offender classification.

If a judge issues an order under this division that contains a

determination that reclassifies a child, the judge shall provide a copy

of the order to the delinquent child and the bureau of criminal

identification and investigation, and the bureau, upon receipt of the

copy of the order, promptly shall notify the sheriff with whom the child
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 17

most recently registered under section 2950.04 or 2950.041 of the

Revised Code of the determination and reclassification.

(3) If a judge issues an order under division (A)(2)(b) of this

section that declassifies the delinquent child as a juvenile offender

registrant, the judge shall provide a copy of the order to the bureau

of criminal identification and investigation, and the bureau, upon

receipt of the copy of the order, promptly shall notify the sheriff with

whom the child most recently registered under section 2950.04 or

2950.041 of the Revised Code of the declassification.

(C) If a judge issues an order under division (A)(2)(a), (b), or

(c) of this section, the judge shall provide to the delinquent child and

to the delinquent child's parent, guardian, or custodian a copy of the

order and, if applicable, a notice containing the information described

in divisions (A) and (B) of section 2950.03 of the Revised Code. The

judge shall provide the notice at the time of the issuance of the order

and shall comply with divisions (B) and (C) of that section regarding

that notice and the provision of it.

(D) An order issued under division (A)(2)(a) or (c) 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 2152.85 of the Revised Code, and section 2152.851

of the Revised Code applies regarding the order and the
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 18

determinations. If an order is issued under division (A)(2)(a) or (c) of

this section, the child's attainment of eighteen or twenty-one years of

age does not affect or terminate the order, and the order remains in

effect for the period of time described in this division.

* * * *.

{¶37} Finally, R.C. 2152.85 allows a juvenile classified as a sex offender to

petition the juvenile court at certain intervals to have his classification modified or

removed (we will call this the “periodic-review provision”). The juvenile may first petition

the court for review three years after the completion-of-disposition hearing. R.C.

2152.85(B)(1). The juvenile may petition the court a second time three years after the first

petition was filed, R.C. 2152.85(B)(2), and then every five years after that for the duration

of the registration period, R.C. 2152.85(B)(3). See also In re D.S., 146 Ohio St.3d 182,

2016-Ohio-1027, 54 N.E.3d 1184, ¶ 36.

Procedural due process and classification of juvenile sex offenders

{¶38} Appellant argues R.C. 2152.84(A)(2)(a) effectively prevents the juvenile

court from declassifying mandatory registrants, thereby rendering the hearing

meaningless. Appellant asks us to agree with the First District Court of Appeals in finding

R.C. 2152.84 violative of the due process rights of mandatory Tier I registrants. In re

D.R., 1st Dist. Hamilton No. C-190594, 2021-Ohio-1797, 173 N.E.3d 103, ¶ 16, appeal

allowed, 164 Ohio St.3d 1460, 2021-Ohio-3594.

{¶39} Due process in the context of the juvenile justice system is guided by

principles of fundamental fairness. “Constitutional procedural safeguards in the juvenile

context find their genesis in the Due Process Clause of the Fourteenth Amendment to the
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 19

United States Constitution.” In re D.R., 5th Dist. Knox No. 13CA27, 2014-Ohio-588, ¶ 17,

citing State v. D.H., 120 Ohio St.3d 540, 2009–Ohio–9, 901 N.E.2d 209, ¶ 44. “Due

process standards as they relate to juvenile proceedings are inexact; this court has held

that ‘fundamental fairness is the overarching concern.’” Id. at ¶ 51; In re C.P., 131 Ohio

St.3d 513, 2012–Ohio–1446, 967 N.E.2d 729, ¶ 71.

{¶40} The right to procedural due process is found in the Fourteenth Amendment

to the United States Constitution and Section 16, Article I of the Ohio Constitution. The

United States Supreme Court has explained, “From the inception of the juvenile court

system, wide differences have been tolerated—indeed insisted upon—between the

procedural rights accorded to adults and those of juveniles.” In re Gault, 387 U.S. 1, 14,

87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Although certain constitutional protections afforded

adults, including notice, confrontation, the right to counsel, the privilege against self-

incrimination, and freedom from double jeopardy, are applicable to juvenile proceedings,

other protections, including trial by jury, are not. See Schall v. Martin, 467 U.S. 253, 263,

104 S.Ct. 2403, 81 L.Ed.2d 207 (1984); McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91

S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Agler, 19 Ohio St.2d 70, 78, 249 N.E.2d 808

(1969).

{¶41} The United States Supreme Court has expressly recognized that “the

Constitution does not mandate elimination of all differences in the treatment of juveniles.”

Schall at 263. In fact, the Supreme Court has expressly recognized that the “acceptance

of juvenile courts distinct from the adult criminal justice system assumes that juvenile

offenders constitutionally may be treated differently from adults.” Bellotti v. Baird, 443

U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). This different treatment is justified
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 20

because of the state's interest in preserving and promoting the welfare of the child. Schall;

McKeiver.

{¶42} Juvenile proceedings are “civil” rather than criminal and, in theory, the

priority of the juvenile system has been rehabilitation, rather than punishment. Society

generally refuses to penalize youth offenders as harshly or to hold them to the same level

of culpability as adults, who are older and, presumably, wiser and more mature. Unless

bound over to the adult criminal system by a discretionary process, youthful offenders are

adjudicated to be “juvenile delinquents” and are placed in special juvenile rehabilitation

and detention centers. In line with the traditional view of the treatment of juveniles,

punishment is not the goal of the Ohio juvenile system, except as necessary to direct the

child toward the goal of rehabilitation. In re Caldwell, 76 Ohio St.3d 156, 157, 666 N.E.2d

1367 (1996).

{¶43} Fundamental fairness requires that juveniles be protected from “oppression,

harassment, or egregious deprivation.” In re W.Z., 6th Dist. No. S-09-036, 194 Ohio

App.3d 610, 2011-Ohio-3238, 957 N.E.2d 367, ¶ 63.

{¶44} Turning to appellant’s argument, we find R.C. 2152.84 does not violate his

right to procedural due process because we do not find that appellant has a substantive

due process right to removal of the Tier I classification at the R.C. 2152.84 completion-

of-disposition hearing.

{¶45} Appellant argues the mandatory nature of the continued Tier-I classification

in the case of a 16- or 17-year-old offender effectively removes the discretion of the

juvenile court. Brief, 7. “However, the special discretion of the juvenile court judge

sometimes yields to the directives of the legislature.” In re D.C., 1st Dist. No. C-180354,
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 21

2019-Ohio-4860, 149 N.E.3d 989, ¶ 37. The legislature could have rationally determined

that sex offenses committed by 16- and 17-year-olds were sufficiently serious that the

juvenile offenders are not to be declassified at the completion-of-disposition hearing.

See, State v. McKinney, 2015-Ohio-4398, 46 N.E.3d 179, ¶ 23 (1st Dist.) [legislature

could have “rationally determined that crimes involving firearms committed by older

juveniles were sufficiently serious that society would not be adequately protected by the

more lenient juvenile court system”]. Especially under the circumstances of the instant

case, fundamental fairness does not require elimination of appellant’s Tier I juvenile sex

offender classification.

{¶46} We also find that R.C. 2152.84 does not eliminate all meaningful discretion

from the juvenile court. The court retains discretion to determine which tier to apply to

the offender. The completion-of-disposition hearing requires the court to evaluate the

offender’s progress. Finally, the duty to register may be removed in three years.

Appellant is not consigned to perpetual registration as a Tier I sex offender; his

classification remains subject to review pursuant to R.C. 2152.85.

{¶47} Finally, we note that we are not convinced the instant case is ripe for review.

Underlying appellant’s argument is the unfounded assertion that he would have been

declassified at the hearing if the statute permitted the trial court to do so; this premise is

belied by the record of the hearing. The trial court noted that regardless of the

unchangeability of the Tier I classification, declassification was not appropriate in the

instant case regardless. T. 35-36.

{¶48} Thus, the timing of appellant’s due process challenge is questionable

because he is not a candidate for declassification at this time. The Ohio Supreme Court
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 22

discussed the concept of ripeness for review in State ex rel. Elyria Foundry Co. v. Indus.

Comm., 82 Ohio St.3d 88, 89, 1998-Ohio-366, 694 N.E.2d 459:

{¶49} Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization

Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320, 351 (1974). The ripeness

doctrine is motivated in part by the desire “to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements over

administrative policies * * *.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct.

1507, 18 L.Ed.2d 681 (1967). As one writer has observed:

“The basic principle of ripeness may be derived from the

conclusion that ‘judicial machinery should be conserved for problems

which are real or present and imminent, not squandered on problems

which are abstract or hypothetical or remote.’ * * * [T]he prerequisite

of ripeness is a limitation on jurisdiction that is nevertheless basically

optimistic as regards the prospects of a day in court: the time for

judicial relief is simply not yet arrived, even though the alleged action

of the defendant foretells legal injury to the plaintiff.” Comment,

Mootness and Ripeness: The Postman Always Rings Twice, 65

Colum. L.Rev. 867, 876 (1965).

State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-

Ohio-5013, ¶ 9-10.

{¶50} We find appellant’s argument that he was entitled to declassification

unavailing, further undermining his contention that he was deprived of procedural due
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 23

process. Appellant had no substantive right to declassification because the trial court

would not have declassified him regardless of the effect of R.C. 2152.84(A)(2)(a).

{¶51} Appellant’s sole assignment of error is overruled and the judgment of the

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

CONCLUSION

{¶52} Appellant’s sole assignment of error is overruled and the judgment of the

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

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.