State v. Buttery ( 2017 )

[Cite as State v. Buttery, 2017-Ohio-9113.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160609
TRIAL NO. B-1506464
Plaintiff-Appellee, :
vs. : O P I N I O N.
ROBERT BUTTERY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 20, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs
Nessler, Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
DETERS, Judge.
Facts and Procedure
1. The Juvenile Adjudications
{¶1} On October 14, 2011, defendant-appellant Robert Buttery
admitted in juvenile court to committing acts which, had they been
committed by an adult, would have constituted two counts of gross sexual
imposition. The magistrate’s orders of November 17, 2011, each state that the
parties agreed that “this is a Tier I offense.” On December 2, 2011, Buttery
was committed to the Department of Youth Services (“DYS”). The
commitment was suspended, and Buttery was placed on “probation” and
ordered to complete the residential program at Altercrest. The magistrate’s
January 13, 2012 decisions stated that “the youth is a Tier III sex offender”
and “[u]pon completion of the dispositions that were made for the sexually
oriented offense upon which the order is based, a hearing will be conducted,
and the order and any determinations included in the order are subject to
modification or termination pursuant to ORC 2152.84 and ORC 2152.85.” At
the ends of both decisions is typed, “THIS IS A TIER I CLASSIFICATION--
NOT TIER III.” Buttery was notified of his duties to register as a Tier I
juvenile-offender registrant. Both of the magistrate’s January 13, 2012
decisions were signed by the juvenile court judge.
{¶2} On February 6, 2013, Buttery’s placement at Altercrest was
terminated. The juvenile court entered orders on July 29, 2013, releasing
Buttery from “official probation” and placing him on “nonreporting probation
with monitored time.” On September 3, 2014, the magistrate denied Buttery’s
application to seal the record and noted that he was to register until 2022
unless reclassified. On October 14, 2014, the matter was set for an R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2152.84 completion-of-disposition hearing. Various continuances occurred.
On April 28, 2015, the magistrate entered decisions stating that a
classification hearing had been held on January 13, 2012, and that Buttery
had been classified as a Tier III offender. No judge’s signature appears on
these decisions, and no notice of reporting requirements was filed. On May
13, 2015, the juvenile court entered two separate orders stating, “After
independent review, the Magistrate’s Decision and Order in this matter as
filed on 04/28/2015 is hereby approved and adopted as the Judgment of this
Court.” The record does not reflect that Buttery has had his completion-of-
disposition hearing in the juvenile court.
2. The Criminal Case
{¶3} In the present case, Buttery was indicted for failing to register
based on one of the juvenile gross-sexual-imposition adjudications. Buttery
filed a motion to dismiss the indictment, which the trial court overruled.
Buttery pleaded no contest, and the trial court found him guilty and
sentenced him as appears of record. Buttery has appealed.
Analysis
{¶4} Buttery’s first assignment of error alleges that the trial court
erred in overruling his motion to dismiss the indictment, because there is no
valid order in place requiring him to register.
{¶5} The state argues that a motion to dismiss the indictment was
not the appropriate vehicle to challenge Buttery’s duty to register. In State v.
Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, ¶ 23, the Ohio
Supreme Court stated, “Under Crim.R. 12(C)(2), trial courts may judge before
trial whether an indictment is defective. Without a doubt, an indictment is
defective if it alleges violations of R.C. Chapter 2950 by a person who is not
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OHIO FIRST DISTRICT COURT OF APPEALS
subject to that chapter. There is no set of circumstances under which such a
person can violate the law’s requirements.” The court continued, “[S]uch a
determination does not embrace the general issue for trial,” and the trial court
is “well within its authority” to dismiss an indictment “where the law simply
does not apply.” Id. at ¶ 24. Therefore, Buttery’s motion to dismiss the
indictment was the proper vehicle to challenge whether he had a duty to
register. See State v. Amos, 1st Dist. Hamilton Nos. C-160717 and C-160718,
2017-Ohio-8448, ¶ 5.
{¶6} Buttery alleges that there is no valid order in place requiring
him to register. He argues that the January 13, 2012 orders classifying him as
a juvenile-offender registrant are invalid because the trial court signed the
magistrate’s decision, but did not enter its own judgment as required by
Juv.R. 40(D)(4)(e). Further, Buttery argues that the juvenile court judge’s
adoption of the magistrate’s decisions was not date-stamped or file-stamped
and was not filed with the clerk of courts.
{¶7} The record shows that the juvenile court judge signed each of
the magistrate’s January 13, 2012 decisions below the typed line stating, “The
Magistrate’s Decision is hereby approved and entered as the judgment of the
Court.” The decisions were entered on the juvenile court’s journal. The
decisions contained a clear pronouncement of the juvenile court’s judgment
and expressed the parties’ rights and responsibilities. See In re S.R., 1st Dist.
Hamilton No. C-170366, 2017-Ohio-8412, ¶ 2, citing In re A.T., 1st Dist.
Hamilton Nos. C-160597, C-160598 and C-160599, 2017-Ohio-5821, ¶ 10. We
hold that the January 13, 2012 decisions classifying Buttery as a Tier I
juvenile-offender registrant are valid judgments of the juvenile court.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Buttery next argues that his classification as a juvenile-offender
registrant is void because the magistrate’s April 28, 2015 entries improperly
increased his classification from a Tier I offender to a Tier III offender. But
the April 28 entries did not improperly increase his classification. The entries
stated, “A classification hearing was held on 1/13/2012. The defendant was
determined to be a Tier III sex offender.” The “Tier III” is clearly a
typographical error. On January 13, 2012, Buttery was classified as a Tier I
juvenile-offender registrant and notified of his registration duties as a Tier I
offender. The September 3, 2014 decisions denying Buttery’s petition to seal
the record state that Buttery “is a registered sex offender and is required to
register until 2022, unless reclassified,” indicating the ten-year registration
period for Tier I juvenile-offender registrants. The record is clear that Buttery
is a Tier I juvenile-offender registrant.
{¶9} Buttery also argues that the April 28, 2015 entries improperly
allowed him to “withdraw” his completion-of-disposition hearing.
{¶10} R.C. 2152.84(A)(1) provides that when a juvenile court issues
an order under R.C. 2152.83 classifying the juvenile as a juvenile-offender
registrant, “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 * * * shall conduct a
hearing to review the effectiveness of the disposition * * * to determine
whether the prior classification” should be continued, terminated, or
modified. R.C. 2152.84(A)(1) states that the juvenile court shall hold a second
hearing upon the completion of disposition.
{¶11} In In re Antwon C., 182 Ohio App.3d 237, 2009-Ohio-2567,
912 N.E.2d 182, ¶ 20 (1st Dist.), we stated,
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OHIO FIRST DISTRICT COURT OF APPEALS
Juvenile [offender registrants] are afforded two classification
hearings. First, under R.C. 2152.83, a juvenile is afforded a
tier-classification hearing either as part of the child’s
disposition or, if the child is committed to a secure facility,
when the child is released. Second, under R.C. 2152.84, when a
child completes all aspects of the disposition, including
probation and any ordered treatment, the trial court “shall
conduct a hearing” to consider the risk of reoffending so that
the trial court can determine whether the order to register as a
sex offender should be continued or terminated. Further, at the
reclassification hearing, the trial court must determine whether
the specific tier classification in which the child has been placed
is proper and if it should be continued or modified.
{¶12} Buttery is entitled to a completion-of-disposition hearing in the
juvenile court. The record reveals, and the parties represented to the trial
court, that Buttery had not had his completion-of-disposition hearing at the
time he was convicted of failing to register. Pursuant to the juvenile court’s
January 13, 2012 decisions, he was a Tier I juvenile-offender registrant. The
first assignment of error is overruled.
{¶13} Buttery’s second assignment of error alleges that the trial court
erred in convicting him of failing to register on his no-contest plea because
there was no allegation that Buttery was “classified” as a juvenile-offender
registrant. Buttery argues that the statement of facts read into the record
when he pleaded guilty to failing to register did not include required language
that he was “classified” as a juvenile-offender registrant, and therefore, the
state failed to allege an essential element of the offense of failing to register.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} The indictment alleged that Buttery failed to register when he
“was required to register pursuant to division (A) and (B) of this section or
failed to send the notice of intent as required pursuant to division (G) of this
section * * * and the most serious sexually oriented offense * * * that was the
basis of the registration * * * requirement that was violated” was gross sexual
imposition “convicted in the HAMILTON COUNTY JUVENILE COURT on
OCTOBER 14, 2011, in violation of Section 2950.04 of the Revised Code.” At
the plea hearing, the prosecutor read the indictment into the record.
{¶15} We note that Buttery was not “convicted” of gross sexual
imposition in the juvenile court, but was adjudicated delinquent for having
committed acts that would have constituted gross sexual imposition had they
been committed by an adult. Buttery argues that simply alleging that he had
been “convicted” or adjudicated delinquent of gross sexual imposition was
insufficient to allege that he had a duty to register. The state, Buttery argues,
had to allege that he had also been classified by the juvenile court as a
juvenile-offender registrant.
{¶16} The indictment alleged that Buttery “failed to register * * *
when he was required to register * * * in violation of Section 2950.04 of the
Revised Code.” Buttery admitted to the facts as alleged in the indictment.
Therefore, he admitted that he failed to register when he was required to
register. That was enough for the trial court to find him guilty under R.C.
2950.04. The second assignment of error is overruled.
{¶17} Buttery’s third assignment of error alleges that his conviction
for failing to register was unconstitutional under State v. Hand, 149 Ohio
St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, because it was based on a prior
juvenile adjudication. In Hand, the Ohio Supreme Court held that the
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OHIO FIRST DISTRICT COURT OF APPEALS
“statute treating prior juvenile adjudications as the equivalent of adult
convictions to enhance either the degree of or the sentence for subsequent
offenses committed as adults violated due process * * *.” Id. at syllabus.
Hand involved the application of R.C. 2929.13(F)(6), which requires a
mandatory prison term for a defendant who has committed a first- or second-
degree felony if the defendant has been previously convicted of a first- or
second-degree felony. R.C. 2929.13(F)(6) did not define “convicted,” so the
lower courts had applied R.C. 2901.08(A), which stated that an adjudication
of delinquency was a conviction for purposes of determining the offense to be
charged and the sentence to be imposed. The United States Supreme Court in
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), held that “[o]ther than the fact of prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” The
Hand court reasoned that “because a juvenile adjudication is not established
through a procedure that provides the right to a jury trial, it cannot be used to
increase a sentence beyond a statutory maximum or mandatory minimum.”
Hand at ¶ 13.
{¶18} This court declined to extend Hand in State v. Barfield, 1st
Dist. Hamilton No. C-160768, 2017-Ohio-8243, and State v. Carnes, 2016-
Ohio-8019, 75 N.E.3d 774 (1st Dist.). In those cases, we held that Hand did
not bar the use of a prior juvenile adjudication as the disability element for
the offense of having weapons while under a disability, because the issue was
the existence of the disability, not its reliability. We stated in Barfield,
Hand concerned the due process implications of a statute that
(1) equated a juvenile adjudication with an adult conviction,
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OHIO FIRST DISTRICT COURT OF APPEALS
and (2) treated the adjudication as a conviction to enhance a
sentence. The statute in this case does not treat an adjudication
as an adult conviction. The juvenile adjudication is a disability
element in its own right. Further, the disability element in the
statute is not a penalty-enhancing element. It is an element of
the crime. Consequently, the due process concerns raised in
Hand do not exist.
Barfield at ¶ 7.
{¶19} The Second Appellate District also declined to extend Hand to
preclude the use of a juvenile adjudication as the disability element in a
weapons-under-disability case in State v. McComb, 2d Dist. Montgomery No.
26884, 2017-Ohio-4010, stating,
Pursuant to the statute, a violation of [the weapons-under-
disability statute] requires an offender to either have a prior
conviction or a prior juvenile adjudication. Unlike the statute
that was struck down in Hand, the statute at issue, R.C.
2923.13(A)(2), does not treat a prior juvenile adjudication as a
conviction. Rather, a prior juvenile adjudication and conviction
are treated as alternative elements necessary to establish the
offense of having weapons while under a disability. Hand does
not ban the use of a prior juvenile adjudication as an element of
an offense; rather, Hand bans the use of a juvenile adjudication
to enhance a penalty by treating the adjudication as an adult
conviction.
Id. at ¶ 26.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} In this case, R.C. 2950.04 distinguishes between an adult
offender convicted of a sexually-oriented offense and a juvenile adjudicated
delinquent and classified for having committed a sexually-oriented offense.
While both are required to register under the statute, the registration
requirements are based on either an adult conviction or a juvenile
adjudication. The statute does not treat a juvenile adjudication as a
conviction; the juvenile is required to register based upon the juvenile
adjudication and classification. The registration requirement does not
depend on an adult conviction. Like the juvenile adjudication constituting the
disability element in the weapons-under-disability cases, the juvenile
adjudication for a sexually-oriented offense requires registration in its own
right. The juvenile adjudication is not a penalty-enhancing element; it is an
element of the crime of failing to register.
{¶21} We hold that Hand does not bar the use of Buttery’s juvenile
adjudication as the basis of his indictment and conviction for failing to
register. The third assignment of error is overruled.
{¶22} The judgment of the trial court is affirmed.
Judgment affirmed.
MOCK, P.J., concurs.
CUNNINGHAM, J., dissents.
CUNNINGHAM, J., dissenting.
{¶23} I respectfully dissent for the reasons set forth in State v.
Carnes, 2016-Ohio-8019, 75 N.E.3d 774 (1st Dist.). And thus, I would
determine the first and second assignments of error to be moot.
Please note:
The court has recorded its own entry this date.
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