In re C.M. , 2012 Ohio 342 ( 2012 )

[Cite as In re C.M., 2012-Ohio-342.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: C.M.
: JUDGES:
: Sheila G. Farmer, P.J.
: John W. Wise, J.
: Julie A. Edwards, J.
:
: Case Nos. 11CA00013 & 11CA00036
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Licking County
Court of Common Pleas, Juvenile
Division, Case No. A2006-0654
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: January 23, 2012
APPEARANCES:
For State of Ohio For C.M.
KENNETH OSWALT AMANDA J. POWELL
Licking County Prosecutor Assistant State Public Defender
Licking County Prosecutor’s Office 250 East Broad Street, Suite 1400
Licking County Admin. Bldg. Columbus, Ohio 43215
20 South Second Street
Newark, Ohio 43055
Edwards, J.
{¶1} Appellant, C.M., appeals from the January 26, 2007, Judgment Entry of
the Licking County Court of Common Pleas, Juvenile Division, ordering appellant to
register as a juvenile sex offender and the December 23, 2010, Judgment Entry of the
Licking County Court of Common Pleas, Juvenile Division, denying his Motion to Vacate
Juvenile Sex Offender Classification Order. The two cases have been consolidated for
purposes of appeal.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 18, 2006, a complaint was filed in the Licking County Court of
Common Pleas, Juvenile Division, alleging that appellant C.M. was delinquent by virtue
of having committed the offense of rape in violation of R.C. 2907.02(A)(2). While
appellant was 18 years old when the complaint was filed, he was 17 years old at the
time of the alleged rape. On November 20, 2006, the trial court found appellant to be
delinquent for committing rape, a felony of the first degree if committed by an adult. A
disposition hearing was scheduled for January 26, 2007. As memorialized in a
Judgment Entry filed on January 26, 2007, at the dispositional hearing, appellant was
committed to jail for thirty days and was placed on sex offender probation for a period of
28 months. Pursuant to a separate Judgment Entry filed on January 26, 2007, the trial
court also classified appellant as a juvenile sex offender registrant pursuant to R.C.
2152.82 with a duty to register once a year for a period of (10) ten years.
{¶3} Appellant subsequently received notification from the Ohio Attorney
General stating that he had been classified under Senate Bill 10 as a Tier III sex
offender and that he was required to register every 90 days for life. In response,
appellant filed a petition contesting his reclassification on constitutional grounds in the
Hamilton County Juvenile Court. After the trial court overruled his constitutional
challenges and denied his petition, appellant filed an appeal with the First District Court
of Appeals. Pursuant to a Judgment Entry filed on December 23, 2009, in In Re: Carl E.
____ III, Hamilton App. No. C-081233, the First District affirmed the decision of the trial
court, finding that Senate Bill 10 was constitutional as applied to juvenile offenders such
as appellant.
{¶4} Appellant then filed an appeal with the Ohio Supreme Court. On March 25,
2010, appellant filed an application to reopen his First District Appeal pursuant to
App.R. 26(B).
{¶5} The Ohio Supreme Court, via an Entry filed on April 14, 2010 in In re: Carl
E. McClurg, III, Case No. 2010-0256, accepted appellant’s appeal and ordered that the
case be held for the decision in In re Smith, No. 2008-1624 and State v. Bodyke, No.
2008-2502. Pursuant to a Judgment Entry filed in Case No. 2010-0256 on August 17,
2010, the Ohio Supreme Court reversed the judgment of the First District Court of
Appeals “as to those portions of the judgment that rejected constitutional challenges to
the Adam Walsh Act on separation-of-powers grounds”, and remanded the case to the
trial court for “further proceedings, if any, necessitated by, State v. Bodyke, ______
Ohio St.3d, 2010-Ohio-2424, ______N.E.2d______.”
{¶6} The First District Court of Appeals, as memorialized in a Judgment Entry
filed on October 27, 2010 in In Re: Carl E. McClurg, III, Hamilton App. No. C-081233,
granted appellant’s App.R. 26(B) application to reopen his appeal and ordered that the
judgment of the Hamilton County Juvenile Court be reversed. The First District Court of
Appeals, in its Judgment Entry, held that pursuant to Bodyke, appellant’s previous
classification, community-notification and registration orders were reinstated.
{¶7} Subsequently, on November 24, 2010, appellant filed a motion in the
Licking County Court of Common Pleas, Juvenile Division, asking that the juvenile sex
offender registration duties imposed in his case on January 26, 2007 be vacated
because the trial court had erred classifying appellant as a juvenile sex offender
registrant pursuant to R.C. 2152.82 rather than R.C. 2152.83(A)(1). As memorialized in
a Judgment Entry filed on December 23, 2010, the trial court denied such motion,
stating that a motion to vacate was not a substitute for a timely appeal and that it
believed that appellant had not been prejudiced by the trial court’s prior orders
pertaining to classification.
{¶8} On January 24, 2011, appellant filed an appeal from the trial court’s
December 23, 2010 Judgment Entry. Such appeal was assigned Case No.
2011CA00013. On March 28, 2011, appellant filed an appeal from the trial court’s
January 26, 2007 Judgment Entry. Such appeal was assigned Case No. 2011CA0036.
On April 21, 2011, appellant filed a motion to consolidate the two cases. Pursuant to a
Judgment Entry filed in this Court on May 9, 2011, the two cases were consolidated for
review.
{¶9} Appellant now raises the following assignment of error on appeal:
{¶10} “THE LICKING COUNTY JUVENILE COURT COMMITTED PLAIN
ERROR WHEN IT CLASSIFIED CARL M. AS A TIER I JUVENILE SEXUAL
OFFENDER REGISTRANT PURSUANT TO R.C. 2152.82.”
I
{¶11} Appellant, in his sole assignment of error, argues that the trial court
committed plain error when it classified appellant as a Tier I juvenile sexual offender
registrant pursuant to R.C. 2152.82. Appellant specifically contends he was never
previously adjudicated delinquent for committing a sexually-oriented offense which is a
necessary requirement for classification under R.C. 2152.82.
{¶12} The version of R.C. 2152.82(A) that was in effect at the time of appellant’s
classification hearing provided, in relevant part, as follows: “(A) The court that
adjudicates a child a delinquent child shall issue as part of the dispositional order 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:
{¶13} “(1) The act for which the child is adjudicated a delinquent child is a
sexually oriented offense that is not a registration-exempt sexually oriented offense or is
a child-victim oriented offense that the child committed on or after January 1, 2002.
{¶14} “(2) The child was fourteen, fifteen, sixteen, or seventeen years of age at
the time of committing the offense.
{¶15} “(3) The court has determined that the child previously was convicted of,
pleaded guilty to, or was adjudicated a delinquent child for committing any sexually
oriented offense or child-victim oriented offense, regardless of when the prior offense
was committed and regardless of the child's age at the time of committing the
offense…”
{¶16} In turn, the version of R.C. 2152.83 in effect at such time provided, in
relevant part, as follows: “(A)(1) 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:
{¶17} “(a) The act for which the child is or was adjudicated a delinquent child is a
sexually oriented offense that is not a registration-exempt sexually oriented offense or is
a child-victim oriented offense that the child committed on or after January 1, 2002.
{¶18} “(b) The child was sixteen or seventeen years of age at the time of
committing the offense.
{¶19} “(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.”
{¶20} In the case sub judice, the trial court never previously adjudicated
appellant delinquent for committing a sexually oriented offense. Thus, the trial court
erred in classifying appellant under R.C. 2152.82 rather than R.C. 2152.83.
{¶21} Appellant’s sole assignment of error is, therefore, sustained.
{¶22} Accordingly, the judgment of the Licking County Court of Common Pleas,
Juvenile Division, is reversed and this matter is remanded to the trial court to correct the
record to reflect the correct code section.
By: Edwards, J.
Farmer, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0822
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: C.M. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NOS. 11CA00013 &
11CA00036
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas, Juvenile Division, is reversed
and this matter is remanded to the trial court to correct the record. Costs assessed to
appellee.
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JUDGES