In re J.A.T. , 2023 Ohio 1854 ( 2023 )

[Cite as In re J.A.T., 2023-Ohio-1854.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
IN THE MATTER OF: CASE NO. 2022-T-0108
J.A.T., DELINQUENT CHILD
Criminal Appeal from the
Court of Common Pleas,
Juvenile Division
Trial Court No. 2020 JD 00157
OPINION
Decided: June 5, 2023
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Appellee, State of Ohio).
Gregory S. Robey, Robey & Robey, 14402 Granger Road, Cleveland, OH 44137 (For
Appellant, J.A.T.).
MARY JANE TRAPP, J.
{¶1} Appellant, J.A.T., delinquent child, appeals the judgment of the Trumbull
County Court of Common Pleas, Juvenile Division, adopting the magistrate’s decision
and classifying him as a tier II sexually oriented offender.
{¶2} J.A.T. asserts one assignment of error, contending the juvenile court erred
and abused its discretion by classifying him as such without properly considering the
required factors in R.C. 2152.83(D).
{¶3} After a careful review of the record and pertinent law, we find J.A.T. has not
established plain error regarding the juvenile court’s classification. Thus, we affirm the
judgment of the Trumbull County Court of Common Pleas, Juvenile Division.
Substantive and Procedural History
{¶4} In May 2020, a complaint was filed in the Trumbull County Court of Common
Pleas, Juvenile Division, alleging J.A.T. is a delinquent child for committing the offenses
of rape in violation of R.C. 2907.02(A)(1)(b) and gross sexual imposition in violation of
R.C. 2907.05(A)(4) and (C)(2). Both offenses would constitute felonies if committed by
an adult. The charges stemmed from allegations that J.A.T., who was 15, engaged in
sexual conduct/contact with his four-year-old sister.
{¶5} In August 2020, J.A.T. appeared with counsel, waived his rights, and
entered a plea of “true” to the rape offense in exchange for dismissal of the gross sexual
imposition offense. The juvenile court sentenced J.A.T. to serve a minimum of 12 months
at the Ohio Department of Youth Services (“DYS”), with his commitment not to exceed
his attainment of age 21. The juvenile court ordered J.A.T. to complete an adolescent
sex offender program at the facility and informed J.A.T. that a sexually oriented offender
classification hearing would be held prior to his release.
{¶6} On November 2, 2022, the magistrate held the classification hearing. The
state, J.A.T., and his counsel appeared, along with J.A.T.’s father, parole officer, and
therapist. The magistrate explained registration was discretionary because J.A.T. was
15 at the time of the offense.
{¶7} The state requested that the juvenile court classify J.A.T. as a tier III
sexually oriented offender, i.e., the most severe classification, due to his and the victim’s
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ages at the time of the offense and because J.A.T. had been denied eligibility for parole
on four prior occasions because of his failure to complete the adolescent sex offender
program.
{¶8} J.A.T.’s counsel requested that the juvenile court not classify J.A.T. as a
sexually oriented offender because he completed the sex offender program. J.A.T.’s
therapist informed the magistrate that J.A.T. completed the program on October 3, 2022,
i.e., approximately one month prior to the classification hearing.
{¶9} The magistrate determined registration was necessary based on the level
of J.A.T.’s offense and the age of the victim. The magistrate also made the following
findings: there was only one victim, not multiple victims; there was no use of drugs or
alcohol to impair the victim; J.A.T. had no prior record of delinquency; and there was no
evidence demonstrating a pattern of abuse or extreme cruelty or any threats of cruelty.
However, the magistrate also found that due to the victim’s age, the physical or mental
injuries suffered were exacerbated. The magistrate also considered the fact J.A.T. took
over two years to complete the sex offender program. Therefore, the magistrate
determined J.A.T. should be classified as a tier II sexually oriented offender.
{¶10} The hearing transcript depicts several instances where J.A.T.’s father
interrupted the proceedings, making comments such as, “Are you kidding me?” and
“That’s so stupid.” When the magistrate referenced J.A.T.’s delay in completing the sex
offender program, J.A.T.’s father interjected, “Because he has a learning disability.”
{¶11} Following the hearing, the magistrate filed a decision recommending J.A.T.
be classified as a tier II sexually oriented offender. J.A.T. did not file objections pursuant
to Juv.R. 40(D)(3)(b). On November 10, 2022, the juvenile court filed a judgment entry
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adopting the magistrate’s decision and ordering J.A.T. to register as a tier II sexually
oriented offender.
{¶12} J.A.T., through counsel, filed a notice of appeal.1 J.A.T. subsequently filed
a motion to supplement the record, attaching a one-page “Sexualized Behavior Program
Assessment” from Cadence Care Network dated June 3, 2020 (“the CCN letter”), and a
four-page “report” completed by Robert Rowland dated September 9, 2020. This court
remanded the matter to the juvenile court to determine whether the referenced documents
should be part of the record. The juvenile court filed a judgment entry stating that the
CCN letter is a part of, and should be supplemented to, the record. However, the juvenile
court also found that the four-page report was a screening tool used by the juvenile
probation department and is therefore not properly in the record.
{¶13} J.A.T. asserts the following sole assignment of error:
{¶14} “The trial court erred and abused its discretion when it classified appellant
as a tier II sexually oriented offender without properly considering the required factors set
forth in R.C. 2152.83(D).”
Standard of Review
{¶15} As stated, J.A.T. did not file objections to the magistrate’s decision. Juv.R.
40(D)(3)(b)(iv) provides, “Except for a claim of plain error, a party shall not assign as error
on appeal the court’s adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Juv.R.
40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by
1. Different counsel also filed a notice of appeal on J.A.T.’s behalf, which this court sua sponte dismissed
as duplicative. See In re J.A.T., 11th Dist. Trumbull No. 2022-T-0118.
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Juv.R. 40(D)(3)(b).” See In re J.D., 11th Dist. Lake No. 2021-L-126, 2022-Ohio-2334, ¶
9, appeal not accepted, 168 Ohio St.3d 1447, 2022-Ohio-3909, 197 N.E.3d 585.
{¶16} “[T]he plain-error standard that [applies] in criminal proceedings [applies]
when errors that are not preserved arise in juvenile-delinquency proceedings.” State v.
Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 49. To demonstrate
plain error, an appellant must show (1) there was an error, (2) the error was “plain,” i.e.,
obvious, and (3) the error affected the appellant’s “substantial rights.” State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). To show an error affected an appellant’s
substantial rights, he or she must show “a reasonable probability that the error resulted
in prejudice—the same deferential standard for reviewing ineffective assistance of
counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,
38 N.E.3d 860, ¶ 22. Therefore, the appellant must show “the probability of a different
result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” United
States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004),
quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).
Legal Requirements
{¶17} For a juvenile, the process for classifying an adjudicated sex offender has
two steps. In re T.M., 11th Dist. Geauga No. 2016-G-0067, 2017-Ohio-156, ¶ 13. First,
the court must decide whether the juvenile should be designated as a juvenile offender
registrant under R.C. Chapter 2950. Id. That decision can either be mandatory or
discretionary. Id.; see R.C. 2152.83(A) and (B). If the juvenile is deemed to be a juvenile
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offender registrant, the second step involves the designation as tier I, II, or III. T.M. at ¶
13.
{¶18} In this case, J.A.T. was 15 at the time of the offense; he did not have a
previous adjudication for a sexually oriented offense; and he had not been labeled as a
serious youthful offender. Consequently, the determination to designate him as a juvenile
offender registrant and the tier level were discretionary. See R.C. 2152.82,
2152.83(B)(1), and 2152.86; T.M. at ¶ 14.
{¶19} Prior to making its “juvenile offender registrant” decision, the juvenile court
must conduct a hearing. See R.C. 2152.83(B)(2); T.M. at ¶ 15. The juvenile court is
required to consider all relevant factors, including (1) the nature of the offense; (2) whether
the juvenile has shown genuine remorse or compunction; (3) the public interest and
safety; (4) the factors in R.C. 2950.11(K); (5) the relevant factors in R.C. 2929.12(B) and
(C); and (6) the results of any treatment and follow-up professional assessment. See
R.C. 2152.83(D); T.M. at ¶ 15.
{¶20} The factors in R.C. 2950.11(K) are (1) the juvenile’s age; (2) the juvenile’s
prior delinquency record; (3) the victim’s age; (4) whether the offense involved multiple
victims; (5) whether drugs or alcohol were used to impair the victim; (6) prior sentence
completions; (7) any mental illness or mental disability of the juvenile; (8) the nature of
the sexual conduct and whether the conduct was a demonstrated pattern of abuse; (9)
whether the juvenile displayed or threatened cruelty during the offense; and (10) any
additional behavioral characteristics. See T.M. at ¶ 16.
{¶21} The factors in R.C. 2929.12(B) are indicative of more serious conduct and
include: (1) the physical or mental injury suffered by the victim which was exacerbated
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due to the victim’s physical or mental condition or age; (2) the victim suffered serious
physical, psychological, or economic harm; (3-5) the juvenile held a position in the public
or community; (6) the juvenile’s relationship with the victim facilitated the offense; (7) the
juvenile committed the offense for hire or as a part of an organized criminal activity; (8)
the juvenile was motivated by prejudice based on race, ethnic background, gender,
sexual orientation, or religion; and (9) the offense involved particular sections of the
Revised Code dealing with family or household members. See T.M. at ¶ 17.
{¶22} The factors in R.C. 2929.12(C) are indicative of less serious conduct and
include: (1) the victim induced or facilitated the offense; (2) the juvenile acted under
strong provocation; (3) the offender did not cause or expect to cause physical harm to
any person or property; and (4) there are substantial grounds to mitigate the juvenile’s
conduct, although the grounds are not enough to constitute a defense. See T.M. at ¶ 18.
Analysis
{¶23} J.A.T. contends the juvenile court improperly considered his delay in
completing the sex offender program as a negative factor. According to J.A.T., the delay
was “attributed” to his “diagnosed learning disability.”
{¶24} R.C. 2152.52(D)(6) requires the juvenile court to consider “[t]he results of
any treatment provided to the child.” While this provision does not expressly reference
the existence of delay in completing treatment, the juvenile court is required to consider
“all relevant factors, including, but not limited to,” those listed in R.C. 2152.83(D)(1)
through (6).
{¶25} In addition, J.A.T. presented no evidence at the hearing indicating he was
diagnosed with a learning disability, much less that it caused the delay in his completion
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of the program. This allegation came from J.A.T.’s father, which he interjected while the
magistrate was speaking. Although the CCN letter does state J.A.T. has a “historical
diagnosis of Autism Spectrum Disorder,” it does not reference a learning disability.
Therefore, we discern no error from the juvenile court’s consideration of J.A.T.’s delay in
completing treatment as a relevant factor.
{¶26} J.A.T. next contends several positive factors outweighed any negative
factors. Two alleged factors, i.e., that J.A.T. lives in Pennsylvania with his grandfather
while the victim lives in Trumbull County and that J.A.T. has been diagnosed with ADHD,
do not appear anywhere in the record. “[F]actual assertions appearing in a party’s brief,
but not in any papers submitted for consideration to the trial court below, do not constitute
part of the official record on appeal, and an appellate court may not consider these
assertions when deciding the merits of the case.” Akro-Plastics v. Drake Indus., 115 Ohio
App.3d 221, 225, 685 N.E.2d 246 (11th Dist.1996).
{¶27} Two other alleged factors, i.e., that J.A.T. “felt remorse for the victim” and
that he has a “low risk level,” are purportedly contained in the CCN letter. However, they
are not actually referenced in that document; they come from the probation department
report the juvenile court expressly determined was not part of its record. “A reviewing
court cannot add matter to the record before it, which was not a part of the trial court’s
proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail,
54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.
{¶28} Further, J.A.T.’s argument is based on his apparent disagreement with the
weight the juvenile court assigned to the statutory factors. The statute only requires the
juvenile court to consider all relevant factors. See R.C. 2152.83(D). The juvenile court
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is in the best position to assess and weigh the evidence before it. In re T.M., 12th Dist.
Fayette No. CA2015-07-017, 2016-Ohio-162, ¶ 27. Therefore, it was within the juvenile
court’s discretion to determine what weight to afford the different factors. See In re D.J.,
12th Dist. Warren No. CA2020-05-029, 2021-Ohio-278, ¶ 18.
{¶29} In sum, J.A.T. has not established plain error. J.A.T.’s sole assignment of
error is without merit.
{¶30} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, Juvenile Division, is affirmed.
JOHN J. EKLUND, P.J.,
EUGENE A. LUCCI, J.,
concur.
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