In re D.F. , 2021 Ohio 3109 ( 2021 )

[Cite as In re D.F., 2021-Ohio-3109.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
In the Matter of D.F., :
: Case No. 21CA5
Adjudicated Delinquent Child. :
:
: DECISION AND JUDGMENT
: ENTRY
:
: RELEASED: 09/03/2021
APPEARANCES:
Lauren Hammersmith, Assistant State Public Defender, Office of the Ohio Public
Defender, Columbus, Ohio, for Appellant.
Justin Lovett, Jackson County Prosecutor, and Rachel E. Daehler, Jackson
County Assistant Prosecutor, Jackson, Ohio, for Appellee.
Wilkin, J.
{¶1} Appellant, D.F., appeals the Jackson County Court of Common
Pleas, Juvenile Division’s, order that classified him a tier III juvenile offender
registrant (JOR) and committed him to the Ohio Department of Youth Services
(DYS), a secure facility. In his first assignment of error, appellant asserts that the
trial court erred by classifying him a tier III JOR at disposition rather than
classifying him upon his release from DYS. The state agrees with appellant’s
argument.
{¶2} We likewise agree with appellant’s argument. This court, along with
others, previously has determined that, when a juvenile court commits a 16- or
17-year-old delinquent child to a secure facility, R.C. 2152.83(A)(1) requires the
court to defer classifying the child a JOR until the child’s release from the secure
Jackson App. No. 21CA5 2
facility. In the case at bar, the trial court committed appellant to DYS, a secure
facility, and the record reflects that appellant was 17 years of age when he
committed the delinquent act, a sexually oriented offense. The court did not,
however, defer appellant’s classification until his release from DYS. Instead, the
trial court’s disposition order classifies appellant a JOR. Therefore, we agree
with appellant that the trial court erred by classifying him a JOR at the time of
disposition rather than at the time of appellant’s release from a secure facility.
We sustain appellant’s first assignment of error.
{¶3} In his second assignment of error, appellant argues that he did not
receive the effective assistance of counsel. Appellant claims that trial counsel
was ineffective for failing to object to the court’s decision to classify him a JOR
before his release from a secure facility. Our disposition of appellant’s first
assignment of error renders his second assignment of error moot.
{¶4} Accordingly, we reverse the part of the trial court’s disposition order
that classified appellant a tier III JOR and otherwise affirm the court’s disposition
order.
FACTS AND PROCEDURAL BACKGROUND
{¶5} On August 27, 2020, a complaint was filed that alleged appellant is a
delinquent child for engaging in conduct that, if committed by an adult, would
constitute the offense of rape of a child under the age of 13, in violation of R.C.
2907.02(A)(1)(b).
{¶6} Appellant later admitted the allegations of the complaint, and the trial
court adjudicated him a delinquent child. The court subsequently committed
Jackson App. No. 21CA5 3
appellant to the legal custody of DYS for an indefinite term consisting of a
minimum of twelve months and a maximum period not to exceed appellant’s
twenty-first birthday. The court also classified appellant a tier III JOR. This
appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED WHEN IT CLASSIFIED D.F. AS A
JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE
THAT DETERMINATION UPON HIS RELEASE FROM A SECURE
FACILITY, IN VIOLATION OF R.C. 2152.83(A)(1).
II. D.F. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE JUVENILE
COURT’S UNAUTHORIZED JUVENILE SEX OFFENDER
CLASSIFICATION IN VIOLATION OF THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND THE OHIO
CONSTITUTION, ARTICLE I, SECTION 10.
FIRST ASSIGNMENT OF ERROR
{¶7} In his first assignment of error, appellant argues that the trial court
incorrectly classified him a tier III JOR at disposition rather than waiting until
appellant’s release from DYS. Appellant asserts that our 2019 decision, In re
K.M.B., 4th Dist. Washington Nos. 19CA11 and 19CA12, 2019-Ohio-4436,
requires us to reverse the trial court’s judgment that classified him a tier III JOR.
The state concedes error.
{¶8} We agree with appellant and the state that K.M.B. governs the
disposition of appellant’s first assignment of error and requires us to reverse the
trial court’s judgment that classified appellant a tier III JOR. In K.M.B., we
explained our reasoning as follows:
R.C. 2152.83(A)(1) states:
Jackson App. No. 21CA5 4
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.
(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.
This court previously has interpreted R.C. 2152.83(A)(1) to mean
that a court that commits a delinquent child to a secure facility cannot
classify the delinquent child a juvenile offender registrant at the time of
disposition. In the Matter of P.B., Scioto App. No. 07CA3140, 2007–Ohio–
3937, ¶ 7. Instead, if the court commits the child to a secure facility, then
the court must wait until the child’s release from the facility before classifying
the child a juvenile offender registrant. Id.; e.g., In re P.C., 9th Dist. Medina
No. 18CA0019-M, 2019-Ohio-2603, 2019 WL 2721358, ¶¶ 10-11; In re L.S.,
2018-Ohio-5005, 126 N.E.3d 308 (6th Dist.), ¶ 16; In re H.P., 9th Dist.
Summit No. 24239, 2008-Ohio-5848, 2008 WL 4866674, ¶ 14, 17; see also
State ex rel. Jean-Baptiste v. Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697,
983 N.E.2d 302, ¶ 28 (stating that “[b]ecause Jean–Baptiste was
adjudicated a delinquent child and was committed to a secure facility, the
statute is clear that the court must issue the order classifying the child as a
juvenile-offender registrant at the time the child is released from the secure
facility—not afterward.”).
In the case at bar, the trial court committed K.B. to DYS’s legal
custody for a minimum term of two years. Additionally, the court adjudicated
K.B. delinquent for committing a sexually oriented offense, and he was
seventeen years old at the time of the offense. Consequently, R.C.
2152.83(A)(1) precluded the trial court from classifying K.B. a juvenile
offender registrant until his release from DYS’s secured facility.
Jackson App. No. 21CA5 5
Id. at ¶ 7-9; see also Matter of T.B., 11th Dist. Trumbull No. 2020-T-0027, 2020-
Ohio-5389, ¶ 6-14.
{¶9} The same analysis applies in the case at bar. The record reflects
that the trial court adjudicated appellant a delinquent child for committing rape, a
sexually oriented offense, and he was 17 years old at the time of the offense.
See R.C. 2152.83(A)(1)(a) and (b). Moreover, the trial court committed appellant
to a secure facility. See R.C. 2152.83(A)(1).
{¶10} Additionally, although the trial court’s dispositional entry recites that
appellant “shall comply with all the requirements that fall under [the tier III JOR]
classification pursuant to [R.C.] 2950.01-2950.99 and 2152.82-2152.86,” nothing
in the record suggests that R.C. 2152.82 or R.C. 2152.86 applies so as to render
R.C. 2152.83(A)(1) inapplicable. See R.C. 2152.83(A)(1)(c). Furthermore, the
state has not asserted that R.C. 2152.82 or R.C. 2152.86 applies. Instead, the
state has conceded that the trial court erred by classifying appellant a JOR at the
time of disposition. Thus, R.C. 2152.83(A)(1) required the trial court to defer
classifying appellant a JOR until his release from the secure facility.
{¶11} Accordingly, based upon the foregoing reasons, we sustain
appellant’s first assignment of error.
SECOND ASSIGNMENT OF ERROR
{¶12} In his second assignment of error, appellant asserts that trial
counsel failed to provide the effective assistance of counsel guaranteed under
the federal and state constitutions. Specifically, appellant argues that trial
Jackson App. No. 21CA5 6
counsel performed ineffectively by failing to object to the trial court’s JOR
classification made at disposition.
{¶13} We believe that our disposition of appellant’s first assignment of
error renders his second assignment of error moot. We therefore do not address
it. See App.R. 12(A)(1)(c).
CONCLUSION
{¶14} Accordingly, we reverse the part of the trial court’s disposition order
that classified appellant a tier III JOR, vacate the tier III JOR classification, and
affirm the remainder of the court’s disposition order.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN
PART.
Jackson App. No. 21CA5 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED
IN PART, AND VACATED IN PART. Costs assessed to appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Jackson County Common Pleas Court Juvenile Division 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.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.