In re Bruce S. ( 2011 )

[Cite as In re Bruce S., 2011-Ohio-6634.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: BRUCE S. : APPEAL NO. C-110042
TRIAL NO. 08-15538X
: O P I N I O N.
Criminal Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 23, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Appellee State of Ohio,
Office of the Ohio Public Defender and Amanda J. Powell, Assistant State Public
Defender, for Appellant Bruce S.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Appellant Bruce S. admitted to and was adjudicated delinquent for
committing an act on September 1, 2007, that, if committed by an adult, would have
constituted the sexually-oriented offense of rape. The juvenile court, believing that
Am.Sub.S.B. No. 10 (“Senate Bill 10”) required it to classify Bruce S. as a Tier III sex
offender, classified Bruce S. as a Tier III sex offender subject to community
notification. We reversed the Tier III classification on appeal, holding that the
juvenile court had discretion to classify Bruce S. as a Tier I, a Tier II, or a Tier III
offender, and that the failure of the trial court to exercise that discretion was
reversible error. In re Bruce S. (Dec. 16, 2009), 1st Dist. No. C-081300. We
remanded the case to the juvenile court for a new hearing to determine Bruce S.’s
appropriate sex-offender classification.
{¶2} A juvenile court magistrate held a new classification hearing on May
19, 2010. The magistrate ordered Bruce S. to register pursuant to Senate Bill 10 as a
Tier III juvenile sex offender subject to community notification. The trial court
overruled Bruce S.’s objections to the magistrate’s decision and on December 20,
2010, adopted it as the judgment of the court. Bruce S. has appealed his
classification under Senate Bill 10 as a Tier III juvenile-sex-offender registrant
subject to community notification.
{¶3} On July 13, 2011, the Ohio Supreme Court decided State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, which held that Senate Bill
10’s classification, registration, and community-notification provisions could not
constitutionally be retroactively applied to sex offenders who had committed their
sex offenses prior to its enactment. Senate Bill 10 was enacted June 27, 2007.
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OHIO FIRST DISTRICT COURT OF APPEALS
Senate Bill 10 repealed Ohio’s former sex-offender classification, registration, and
community-notification provisions (“Megan’s Law”), Am.Sub.H.B. No. 180, 146 Ohio
Laws, Part II, 2560, enacted in 1996, amended in 2003 by Am. Sub.S.B. No. 5, 150
Ohio Laws, Part IV, 6556, effective July 1, 2007. Senate Bill 10’s registration,
classification, and community-notification provisions, including those regarding the
classification of juveniles as Tier I, Tier II or Tier III sex offenders, became effective
January 1, 2008.
{¶4} “Where an act of the General Assembly amends an existing section of
the Revised Code * * *, postpones the effective date of the amended section for [a
certain period of time] after the effective date of the act, and repeals the ‘existing’
section in a standard form of repealing clause used for many years by the General
Assembly for the purpose of complying with Section 15(D) of Article II of the
Constitution of Ohio, the constitutionally mandated repealing clause must be
construed to take effect upon the effective date of the amended section in order to
prevent a hiatus in statutory law, during which neither the repealed section nor the
amended section is in effect.” Cox v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d
501, 508, 424 N.E.2d 597.
{¶5} The repealing clause of a statute does not take effect until the
amended provisions of the act come into operation. See id.; State v. Brown, 8th
Dist. No. 90798, 2009-Ohio-127, reversed in part on other grounds, In re Sexual
Offender Classification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753, 933 N.E.2d 801;
In re Carr, 5th Dist. No. 08 CA 19, 2008-Ohio-5689; In re Marcio A., 5th Dist. No.
2007 CA 00149, 2008-Ohio-4523. Senate Bill 10’s classification, registration, and
community-notification provisions became effective on January 1, 2008. Prior to
that date, including the period from Senate Bill 10’s enactment to its January 1, 2008
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OHIO FIRST DISTRICT COURT OF APPEALS
effective date, Ohio’s former sex-offender classification, registration and community-
notification provisions were in effect. See State v. Brown, supra; In re Carr, supra;In re Marcio A., supra.{¶6} Bruce S. committed his offense on September 1, 2007, prior to the
effective date of Senate Bill 10’s registration, classification, and community-
notification provisions, and during the time that Megan’s Law was in effect.
Therefore, Senate Bill 10’s classification, registration, and community-notification
provisions may not be applied to him. See State v. Williams, supra. The judgment of
the juvenile court classifying Bruce S. as a Tier III juvenile sex offender under Senate
Bill 10 must be reversed, and this cause must be remanded for Bruce S.’s sexual-
offender classification under Megan’s Law.
{¶7} Our disposition of this appeal renders Bruce S.’s four assignments of
error moot. Therefore, we do not address them. The judgment of the trial court is
reversed, and this cause is remanded for further proceedings consistent with law and
this opinion.
{¶8} We recognize that our opinion in this case is in conflict with the
opinion rendered by the Eighth Appellate District in State v. Scott, 8th Dist. No.
91890, 2011-Ohio-6255, holding that Senate Bill 10’s classification provisions may be
constitutionally applied to a sex offender who had committed his offenses during the
period from July 1, 2007 through August 31, 2007. Therefore, pursuant to Section
3(B)(4), Article IV, of the Ohio Constitution, we sua sponte certify a conflict to the
Ohio Supreme Court for review and final determination.
{¶9} We certify this question to the Supreme Court of Ohio: May Senate
Bill 10’s classification, registration, and community-notification provisions be
constitutionally applied to a sex offender who had committed his sex offense between
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OHIO FIRST DISTRICT COURT OF APPEALS
the July 1, 2007, repeal of Megan’s Law and the January 1, 2008, effective date of
Senate Bill 10’s classification, registration, and community-notification provisions?
Judgment reversed and cause remanded.
S UNDERMANN , P.J., C UNNINGHAM and F ISCHER , JJ.
Please note:
The court has recorded its own entry this date.
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