In re D.F. , 111 N.E.3d 737 ( 2018 )

[Cite as In re D.F., 2018-Ohio-1792.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.F. JUDGES:
Hon. William B. Hoffman, P.J.
Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
Case No. 2016CA0015, 2016CA0016
OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of
Common Pleas, Juvenile Division, Case
Nos. 201420009, 2014CR008
JUDGMENT: Judgment reversed in part, affirmed in part
DATE OF JUDGMENT ENTRY: May 2, 2018
APPEARANCES:
For Appellant For Appellee
CHARLYN BOHLAND BENJAMIN E. HALL
The Office of the Public Defender Coshocton County Prosecutor's Office
Assistant State Public Defender Assistant Prosecuting Attorney
250 East Broad Street, Suite 1400 318 Chestnut Street
Columbus, Ohio 43215 Coshocton, Ohio 43812
Coshocton County, Case No. 2016CA0015, 2016CA0016 2
Hoffman, P.J.
{¶1} This case comes before this Court from the judgment entered by the Ohio
Supreme Court on February 28, 2018, remanding for application of State v. Morgan,
2017-Ohio-7566. Appellant is D.F.; Appellee is the state of Ohio.
STATEMENT OF PROCEEDINGS1
{¶2} On January 17, 2014, the State filed a Bill of Information alleging D.F.
committed two counts of rape, felonies of the first degree, in violation of R.C.
2907.02(A)(1)(b), with each charge carrying an attendant serious youthful offender (SYO)
specification, pursuant to R.C. 2152.11(D)(2)(b); and one count of gross sexual
imposition, a third degree felony, in violation of R.C. 2907.05(A)(4).
{¶3} Appellant's date of birth is October 18, 1995, and the offenses were alleged
to have occurred between December 3, 2009, and January 16, 2013.
{¶4} On January 17, 2014, Appellant entered an admission to the charges. The
matter proceeded to disposition on January 30, 2014. The juvenile court committed
Appellant to the Ohio Department of Youth Services for a minimum of two years and six
months, maximum of up to Appellant's twenty-first birthday. Pursuant to the SYO
specification and R.C. 2152.11(D)(2)(b), the court imposed a suspended adult sentence
of life imprisonment with parole eligibility after 15 years on each count of rape, to be
served concurrently.
1A full rendition of the underlying facts giving rise to Appellant’s adjudication, disposition
and sentence is unnecessary for resolution of this appeal.
Coshocton County, Case No. 2016CA0015, 2016CA0016 3
{¶5} Based upon Appellant's conduct while committed to DYS2, on December
23, 2015, the State moved to invoke the suspended adult sentence under the SYO
specification. On October 4, 2016, the trial court conducted a hearing, and imposed an
adult term of incarceration of fifteen years to life. The trial court on the same date held a
hearing and imposed a juvenile disposition regarding classification. The court classified
Appellant a tier III, Public Registry Qualified Juvenile Offender Registrant (PRQJOR),
pursuant to R.C. 2152.86. The parties and the trial court acknowledged all juvenile
dispositions terminated upon the imposition of an adult sentence, but “waived any defect
to this juvenile dispositional order and...affirmed its intention for this juvenile order to
survive the adult sentence.” (10/5/2016 Judgment Entry) The court also classified
Appellant a tier III adult registrant. Counsel for Appellant did not object to the sentence
or classifications.
{¶6} Appellant appealed assigning as error,
I. THE JUVENILE COURT ERRED WHEN IT FAILED TO APPOINT
A GUARDIAN AD LITEM TO PROTECT D.F.'S BEST INTERESTS, IN
VIOLATION OF R.C. 2151.281(A)(1) AND JUV. R. 4(B)(1).
II. THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS
UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE TRIAL
COURT TO MAKE AN INDIVIDUALIZED DETERMINATION ABOUT D.F.'S
2A State Trooper conducted an investigation into Appellant’s conduct while at DYS, and
substantiated sexual conduct occurred between Appellant and another DYS resident.
6/24/2016 Transcript. P. 207.
Coshocton County, Case No. 2016CA0015, 2016CA0016 4
SENTENCE OR THE ATTRIBUTES OF HIS YOUTH, IN VIOLATION OF
HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT,
AS GUARANTEED BY THE EIGHTH AMENDMENT TO THE U.S.
CONSTITUTION, AND ARTICLE I, SECTION 9, OHIO CONSTITUTION.
III.THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. AS
A PUBLIC REGISTRY QUALIFIED JUVENILE OFFENDER REGISTRANT
(PRQJOR), PURSUANT TO R.C. 2152.86, IN VIOLATION OF IN RE C.P.,
131 OHIO ST.513, 2012-OHIO-1446, 131 Ohio St.3d 513, 967 N.E.2d 729,
¶ 86.
IV.THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. TO
AN ADULT TIER III REGISTRATION, PURSUANT TO THE ADULT
STATUTES, IN VIOLATION OF R.C. 2152.82, 2152.83, 2152.84, 2152.85,
AND 2950.01(G), (M).
V. D.F. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION.
{¶7} We sustained the first assignment of error, finding the court erred in failing
to appoint a guardian ad litem for Appellant. We overruled the second assignment of
error, finding the Ohio Supreme Court had addressed the assigned error concerning
constitutionality of the statute. We found the third, fourth and fifth assignments of error to
be premature based on our disposition of the first assignment of error. In re: D.F.,5th
Dist. Coshocton Nos. 2016CA0015, 2016CA0016, 2017-Ohio-7307.
Coshocton County, Case No. 2016CA0015, 2016CA0016 5
{¶8} The state of Ohio appealed our decision to the Ohio Supreme Court, which
accepted jurisdiction over the appeal. On February 28, 2018, the Supreme Court
remanded the case to this Court for reconsideration of Appellant’s direct appeal.
Pursuant to instructions on remand, we address Appellant’s assignments of error.
I.
{¶9} Appellant argues the trial court erred in failing to appoint a guardian ad litem
for the SYO invocation proceedings and subsequent sentencing. Appellant did not
appear with a parent or legal guardian for these proceedings, and did not object to the
court’s failure to appoint a guardian ad litem.
{¶10} R.C. 2151.281(A)(1) provides:
(A) The court shall appoint a guardian ad litem, subject to rules
adopted by the supreme court, to protect the interest of a child in any
proceeding concerning an alleged or adjudicated delinquent child or unruly
child when either of the following applies:
(1) The child has no parent, guardian, or legal custodian.
{¶11} Juv. R. 4(B)(1) similarly provides for appointment of a guardian ad litem:
(B) Guardian ad Litem; When Appointed. The court shall appoint
a guardian ad litem to protect the interests of a child or incompetent adult in
a juvenile court proceeding when:
Coshocton County, Case No. 2016CA0015, 2016CA0016 6
(1) The child has no parents, guardian, or legal custodian[.]
{¶12} Subsequent to our decision reversing the instant case based on the trial
court’s failure to appoint Appellant a guardian ad litem, the Ohio Supreme Court held
when the juvenile court fails to appoint a guardian ad litem as required by statute, and the
error is unpreserved, the juvenile must demonstrate plain error pursuant to the criminal
plain error standard, i.e. the error affected the outcome of the proceeding. State v.
Morgan, 2017-Ohio-7565, ¶¶48-51.
{¶13} In Morgan, the court determined the juvenile had not demonstrated plain
error in the trial court’s failure to appoint a guardian ad litem for him in his amenability
hearing. The court noted he was represented by counsel at all stages of the bindover
process, and counsel advocated against bindover. Id. at ¶52. Further, some of the
information a guardian ad litem would have provided at an amenability hearing might have
duplicated the information already before the court. Id. at ¶53. The court further noted
Morgan’s mother was present for all hearings except the amenability hearing, and had
participated in completion of the social-background section of the court-ordered
psychological examination. Id. at ¶52. “At the time of the amenability hearing, all that
remained was an opportunity for a presentation of arguments for or against bindover and
for the court to announce its judgment.” Id.
{¶14} In the instant case, Appellant previously entered a plea which included the
SYO specification at issue in the invocation hearing. In exchange for his plea to the three
counts in the complaint, the State agreed not to pursue other charges against Appellant
regarding other victims under investigation at the time. At the time of his original
Coshocton County, Case No. 2016CA0015, 2016CA0016 7
sentencing on January 30, 2014, the legal custodian from the agency which had custody
of Appellant was present in the courtroom and addressed the court. Tr. (1/30/14) p.10.
Further, throughout the initial plea process and sentencing, and in the preliminary hearing
regarding invocation of the SYO sentence, Appellant demonstrated maturity by often
seeking clarification from the court and from his attorney when he lacked understanding
of the proceedings. Tr. (1/17/14) p.10-12; Tr. (1/30/14) p. 14; Tr. (1/19/16) p.7. At the
merit hearing on the motion to invoke the SYO specification, Appellant again
demonstrated an ability to seek clarification from the court concerning the proceeding and
to confer with counsel in order to participate in his defense. Tr. (4/12/16) p. 13, 15, 19,
35.
{¶15} R.C. 2152.14(A) provides as follows regarding a motion to invoke the adult
portion of a dispositional sentence:
(A)(1) The director of youth services may request the prosecuting
attorney of the county in which is located the juvenile court that imposed a
serious youthful offender dispositional sentence upon a person under
section 2152.121 or 2152.13 of the Revised Code to file a motion with that
juvenile court to invoke the adult portion of the dispositional sentence if all
of the following apply to the person:
(a)The person is at least fourteen years of age.
(b)The person is in the institutional custody, or an escapee from the
custody, of the department of youth services.
Coshocton County, Case No. 2016CA0015, 2016CA0016 8
(c)The person is serving the juvenile portion of the serious youthful
offender dispositional sentence.
(2)The motion shall state that there is reasonable cause to believe
that either of the following misconduct has occurred and shall state that at
least one incident of misconduct of that nature occurred after the person
reached fourteen years of age:
(a) The person committed an act that is a violation of the rules of the
institution and that could be charged as any felony or as a first degree
misdemeanor offense of violence if committed by an adult.
(b)The person has engaged in conduct that creates a substantial risk
to the safety or security of the institution, the community, or the victim.
{¶16} R.C. 2152.14(E) provides for invocation of the adult sentence following a
hearing:
(E)(1) The juvenile court may invoke the adult portion of a person's
serious youthful offender dispositional sentence if the juvenile court finds all
of the following on the record by clear and convincing evidence:
(a)The person is serving the juvenile portion of a serious youthful
offender dispositional sentence.
Coshocton County, Case No. 2016CA0015, 2016CA0016 9
(b)The person is at least fourteen years of age and has been
admitted to a department of youth services facility, or criminal charges are
pending against the person.
(c)The person engaged in the conduct or acts charged under division
(A), (B), or (C) of this section, and the person's conduct demonstrates that
the person is unlikely to be rehabilitated during the remaining period of
juvenile jurisdiction.
{¶17} The parties stipulated Appellant was at least fourteen years of age and had
been admitted to a department of youth services facility, and he was serving the juvenile
portion of a SYO dispositional sentence. At the SYO invocation hearing, the State
presented evidence of three alleged rapes committed by Appellant while in the
department of youth services facility. The court found two of the incidents were not proven
by clear and convincing evidence. However, the third incident the court found proven by
clear and convincing evidence. While Appellant did not admit or deny using force or
coercion in this sexual encounter with another resident of the facility, he responded to the
police inquiry by stating he would never force himself on anyone unless he was smaller
than Appellant, and he stated the other youth in question was short.
{¶18} The State further presented evidence Appellant’s conduct creates a
substantial risk to the safety of the community or the victim. Appellant demonstrated lack
of interest, participation and progress in sex offender treatment. He admitted to Dr.
Jennifer Alpert, his psychologist in the facility, he will reoffend. He admitted to engaging
in “grooming” activity with others in the facility, and discussed a desire to contact past
Coshocton County, Case No. 2016CA0015, 2016CA0016 10
victims and rekindle the relationships. Appellant expressed in a letter he was unsafe to
be out in the community, as he knows what he would do given the opportunity.
{¶19} As to sentencing, the trial court initially sentenced Appellant to a term of life
imprisonment with parole eligibility in fifteen years on each count of rape, to be served
concurrently. However, following the SYO invocation hearing, the trial court modified the
adult sentence to fifteen years to life on each count of rape, to be served concurrently.3
{¶20} The record does not demonstrate had Appellant been represented by a
guardian ad litem, the result of the proceeding would have been different. Appellant
demonstrated an ability throughout the case to interact successfully with the court and
counsel to ensure a complete understanding of the proceedings against him. The
evidence presented at the hearing clearly supported the court’s findings in support of
invocation of the adult sentence. The adult portion of Appellant’s sentence was modified
to a lesser sentence following the SYO invocation hearing. We find appellant has not
demonstrated plain error in the court’s failure to appoint a guardian ad litem.
{¶21} The first assignment of error is overruled.
II.
{¶22} For the reasons stated in our August 21, 2017 opinion in the instant case,
the second assignment of error is overruled.
3 R.C. 2152.14(E)(2) allows the court to modify the adult sentence to consist of any
lesser prison term that could be imposed for the offense.
Coshocton County, Case No. 2016CA0015, 2016CA0016 11
III.
{¶23} In his third assignment of error, Appellant argues the court erred in
classifying him as a public registry qualified juvenile offender registrant (PRQJOR)
pursuant to R.C. 2152.86, as the statute has been found unconstitutional by the Ohio
Supreme Court. We agree.
{¶24} In the case of In re C.P., 131 Ohio St.3d 513, 2012–Ohio–1446, 967 N.E.2d
729, the Ohio Supreme Court held R.C. 2152.86 violates procedural due process
because it automatically imposes lifelong registration and notification requirements on a
certain class of juvenile sex offenders called public-registry-qualified juvenile-offender
registrants.[“PRQJOR”] In re C.P., ¶ 86. Pursuant to R.C. 2152.86, juveniles are public-
registry-qualified juvenile-offender registrants if they (1) were 14 through 17 years old
when the offense was committed, (2) have been adjudicated a delinquent child for
committing certain specified sexually-oriented offenses, and (3) have had a court impose
on them a serious youthful offender dispositional sentence. Id. at ¶ 13. These offenders
are to be classified under tier III. Id. at ¶ 85–86. Therefore, the offenders “are
automatically subject to mandatory, lifetime sex-offender registration and notification
requirements” because they are automatically labeled tier III offenders. Id. at ¶ 1. The
court also held R.C. 2152.86 violated the Cruel and Unusual Punishment Clause of the
Eighth Amendment and the Due Process Clause of the Fourteenth Amendment because
it “imposes automatic, lifelong registration and notification requirements on juvenile sex
offenders tried within the juvenile system.” Id. at syllabus. The court contrasted R.C.
2152.86 with sex offender classifications made “through a traditional juvenile disposition,”
which provides the trial court with more discretion in the imposition of the reporting and
Coshocton County, Case No. 2016CA0015, 2016CA0016 12
registration requirements because “the court holds a hearing to determine [the offender's]
tier classification.” Id. at ¶ 20. See, In re M.C., 10th Dist. Franklin No. 12AP–618, 2013–
Ohio–2109, ¶ 79.
{¶25} The trial court classified Appellant a PRQJOR in its October 5, 2016
judgment entry as follows:
On this date, at this hearing and prior to granting the State’s Motion
to Invoke the Serious Youthful Offender specification, this Court held a sex
offender registration hearing and imposed a juvenile disposition regarding
classification. Specifically, defendant is hereby ordered a Tier III public
registry qualified juvenile offender registrant (PRQJOR) pursuant to
2152.86 of the Revised Code. The parties and the Court acknowledged
that R.C. 2152.4(F) [sic] terminated all juvenile dispositions when an adult
sentence is imposed but waived any defect to this juvenile dispositional
order and this Court affirmed its intention for this juvenile order to survive
the adult sentence.
{¶26} At the hearing, the trial court recognized the statute had been found
unconstitutional:
The court had reviewed, prior to going on the record with counsel,
the Public Registry Qualified Juvenile Registrant requirements. 14 years of
Coshocton County, Case No. 2016CA0015, 2016CA0016 13
age at the time of the act. Classified as a serious youthful offender.
Adjudicated delinquent for committing any of the following, which includes
2907.02 rape. I just want to make sure I’m looking at all the notes on these.
So, it would seem that [D.F.] satisfies the requirements to be registered
under this class of juvenile offenders or Public Registry Qualified Juvenile
Offender registrant. There has been a Supreme Court case that has found
certain aspects of the law unconstitutional. So, what the court’s going to do
is going to find for the juvenile registration that [D.F.] is a Tier III sex
offender, child victim offender registrant. Because he satisfies the
requirements for Public Registry Qualified Juvenile Offender registrant,
subject to community notification provisions, the court will make that finding
but certainly exempt any portions of those requirements that have been
found to be unconstitutional and subsequent authority interpreting that
statute.
Tr.(10/4/16)p.13-14.
{¶27} Although from the bench the trial court expressed an intention to not run
afoul of the unconstitutional provisions of R.C. 2152.86, the trial court automatically
classified Appellant as a tier III public registry qualified juvenile offender because he met
the requirements for such classification set forth in R.C. 2152.86. The automatic
imposition of lifelong tier III reporting requirements upon a juvenile who meets the
classification criteria set forth in R.C. 2152.86 is exactly what the Ohio Supreme Court
found unconstitutional in In re C.P., supra.Coshocton County, Case No. 2016CA0015, 2016CA0016 14
{¶28} The third assignment of error is sustained.
IV.
{¶29} In his fourth assignment of error, Appellant argues the court erred in
classifying him a tier III adult offender. We agree.
{¶30} The State argues pursuant to this Court’s decision in State v. Reidenbach,
5th Dist. Coshocton No. 2014CA0019, 2015-Ohio-2915, the adult registration statute
applies to Appellant because he was given an adult sentence. Reidenbach is
distinguishable from the instant case, as Reidenbach was bound over and convicted as
an adult in adult court. In the instant case, Appellant was subject to an adult sentence,
but was not convicted as an adult. Rather, he was adjudicated delinquent in juvenile
court.
{¶31} R.C. 2950.01(G) includes in the definition of a tier III registrant:
(3) A sex offender who is adjudicated a delinquent child for
committing or has been adjudicated a delinquent child for committing any
sexually oriented offense and who a juvenile court, pursuant to section
2152.82, 2152.83, 2152.84, or 2152.85 of the Revised Code, classifies a
tier III sex offender/child-victim offender relative to the offense.
(4) A child-victim offender who is adjudicated a delinquent child for
committing or has been adjudicated a delinquent child for committing any
child-victim oriented offense and whom a juvenile court, pursuant to section
Coshocton County, Case No. 2016CA0015, 2016CA0016 15
2152.82, 2152.83, 2152.84, or 2152.85 of the Revised Code, classifies a
tier III sex offender/child-victim offender relative to the current offense.
{¶32} As a sex offender and child-victim offender adjudicated delinquent,
Appellant’s classification as a tier III offender/child-victim offender must be made pursuant
to R.C. 2152.82, R.C. 2152.83, R.C. 2152.84, or R.C. 2152.85. As discussed in the third
assignment of error, the trial court improperly classified Appellant a tier III offender
pursuant to R.C. 2152.86, which has been found unconstitutional. Because Appellant
was adjudicated delinquent in juvenile court, the trial court erred in imposing on him an
adult offender registration classification.
{¶33} The Ninth District Court of Appeals has found harmless error in the
classification of a serious youth offender as an adult registrant:
[A] trial court speaks only through its journal entries.” State v.
Leason, 9th Dist. Summit No. 25566, 2011-Ohio-6591, 2011 WL 6740749,
¶ 8. In its entry, the juvenile court wrote that D.J. “has been convicted of a
sexually-oriented offense” even though he, instead, had been adjudicated
delinquent for committing rape and murder. The court went on, however, to
order D.J. “to be adjudicated a Tier III Sex Offender * * *.” The definition of
a “Tier III sex offender * * *” includes “[a] sex offender who * * * has been
adjudicated a delinquent child for committing any sexually oriented offense
and who a juvenile court, pursuant to section 2152.82, 2152.83, 2152.84,
Coshocton County, Case No. 2016CA0015, 2016CA0016 16
or 2152.85 * * * classifies a tier III sex offender * * * relative to the offense.”
R.C. 2950.01(G)(3). Although the juvenile court used the word “adjudicate”
in its entry instead of “classify,” the difference between the two words in this
context is not significant. In addition, D.J. has not identified any difference
in the requirements placed on a Tier III sex offender who receives that
designation automatically for being convicted of certain offenses as an adult
and juveniles who receive that designation under Section 2950.01(G)(3).
Accordingly, upon review of the juvenile court's entry, we conclude that any
error in the court's word choice was harmless. D.J.'s fifth assignment of
error is overruled.
In re D.J., 9th Dist. Summit No. 28472, 2018-Ohio-569, ¶23.
{¶34} The juvenile in In re D.J. had been properly classified a tier III juvenile
offender pursuant to R.C. 2950.01(G)(3). Thus, the additional classification as an adult
offender was superfluous, as the registration and reporting requirements were identical
to the juvenile registration and reporting requirements for a tier III offender. In the instant
case however, Appellant was not properly classified a tier III juvenile offender pursuant
to R.C. 2950.01(G)(3), as the trial court incorrectly applied R.C. 2952.86, which had been
declared unconstitutional. Accordingly, the imposition of the adult classification is not
harmless.
{¶35} The fourth assignment of error is sustained.
Coshocton County, Case No. 2016CA0015, 2016CA0016 17
V.
{¶36} Appellant argues counsel was ineffective for failing to raise his improper
classification as a PRQJOR and his improper classification as an adult tier III offender.
Because we have sustained Appellant’s assignments of error relative to his classification,
this assignment of error is overruled as being moot.
{¶37} The judgment is reversed as to Appellant’s tier III juvenile and adult
registration classification and remanded for re-classification in accordance with law and
this opinion. The judgment is affirmed in all other respects.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur