In re M.R. , 2014 Ohio 2623 ( 2014 )

[Cite as In re M.R., 2014-Ohio-2623.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE: ) CASE NO. 13 JE 30
)
M.R., A MINOR CHILD. ) OPINION
)
)
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Juvenile Division, Case No.
12DL138.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Michael DeWine
Ohio Attorney General
Attorney Marianne Hemmeter
Assistant Attorney General
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
For Defendant-Appellant: Attorney Timothy Young
Ohio Public Defender
Attorney Brooke Burns
Assistant Ohio Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 16, 2014
[Cite as In re M.R., 2014-Ohio-2623.]
VUKOVICH, J.
{¶1} Juvenile-appellant M.R. appeals from his designation as a juvenile
offender registrant on three constitutional grounds. First, appellant characterizes the
provision in R.C. 2152.83(A) that the classification shall be made at the time of
release from the secure facility as a double jeopardy violation. Appellant then states
the statutory age distinctions with regards to registration constitute an equal
protection violation, urging that there is no rational basis to differentiate between
juveniles of different ages as provided by R.C. 2152.83, wherein different standards
apply to: ages thirteen and under, ages fourteen and fifteen, and ages sixteen and
seventeen. Finally, appellant contends that continuing the classification beyond age
21 is a due process violation and constitutes cruel and unusual punishment. For the
following reasons, these arguments are overruled, and the judgment of the trial court
is affirmed.
STATEMENT OF THE CASE
{¶2} After conducting a trial, the Jefferson County Common Pleas Court,
Juvenile Division, found appellant delinquent for committing the offense of rape. See
R.C. 2907.029(A)(1)(c) (sexual conduct where victim’s ability to resist or consent is
substantially impaired because of a mental or physical condition and offender knows
this or has reasonable cause to believe it). On March 17, 2013, appellant was
sentenced to at least one year in the custody of the Department of Youth Services
(DYS), which custody could last until appellant turned 21. The court stated that the
offense was sexually oriented, appellant was 16 at the time of the offense, and he
had no prior sexual offenses or child victim offenses. The court ordered juvenile sex
offender treatment, stating that appellant shall not be released until the court holds a
classification hearing. The court indicated that if appellant became eligible for a
move from DYS to New Life for Youth Paint Creek facility, the court would approve a
transfer.
{¶3} On June 6, 2013, appellant filed a brief in the juvenile court arguing that
a classification would be unconstitutional on the three grounds aforementioned, and
the state opposed those arguments. On August 2, 2013, the juvenile court found
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appellant’s constitutional arguments to lack merit. The classification hearing
proceeded on August 16, 2013. The court reviewed a juvenile sex offender
assessment completed by DYS and behavioral reports. The court classified
appellant as a tier II registrant (and thus not subject to community notification). The
court also ordered that appellant could be transferred to the Paint Creek facility.
{¶4} Appellant filed a timely notice of appeal. On appeal, he raises the three
constitutional arguments that he presented prior to the classification hearing. He
does not contest the factual bases for classification into tier II.
JUVENILE CLASSIFICATION AS “PUNITIVE”
{¶5} As a preliminary matter, we note that various arguments set forth by
appellant are based upon the initial position that S.B. 10 as applied to juveniles is
classified as a punitive rather than a remedial scheme. The state does not contest
appellant’s initial characterization of the classification system as punitive.
{¶6} The prior classification laws had been considered remedial rather than
punitive. See State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d
110, ¶ 29; State v. Cook, 83 Ohio St.3d 404, 418, 700 N.E.2d 570 (1998). After the
enactment of the Adam Walsh Act in S.B. 10, the Supreme Court addressed whether
the changes made to Chapter 2950 classifications could be applied retroactively to
those who committed their crimes prior to the amendments but who were sentenced
after the amendments, i.e. whether the classification scheme is now a punitive rather
than a remedial law. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108.
{¶7} The Williams Court found that the S.B. 10 amendments were punitive
based upon certain changes: automatic classification and registration, no evidentiary
hearing, no trial court discretion as to tier, the inability to challenge the classification,
the increase from ten years to twenty-five years (adult tier II) registration, and
registration was required more often. Id. at ¶ 17-21 (stating that no one change
compelled the decision). Williams dealt only with adult classification, and some of the
concerns expressed are not involved in the juvenile classification at issue.
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{¶8} Still, the Court broadly pronounced, “S.B. No. 10, as applied to
defendants who committed sex offenses prior to its enactment, violates Section 28,
Article II of the Ohio Constitution, which prohibits the General Assembly from passing
retroactive laws.” Id. at syllabus, ¶ 21. And, after reviewing the Ferguson dissent’s
rationale, the Williams Court announced: “Following the enactment of S.B. 10, all
doubt has been removed: R.C. Chapter 2950 is punitive.” Id. at ¶16 (adding that the
statutory scheme has changed dramatically since Cook and markedly since
Ferguson).
{¶9} The Court then summarily reversed and remanded multiple juvenile
cases for application of its 2011 Williams case. In re Cases Held for the Decision in
In re D.J.S., 130 Ohio St.3d 253, 2011-Ohio-5349, 957 N.E.2d 288; In re D.J.S., 130
Ohio St.3d 257, 2011-Ohio-5342, 957 N.E.2d 291, ¶ 1. And, the Court later applied
Williams to a juvenile in a case concluding that the earliest application of the S.B. 10
amendments in order to avoid retroactive application is the January 2008 effective
date rather than the June 2007 enactment date. In re Bruce S., 134 Ohio St.3d 477,
2012-Ohio-5696, 983 N.E.2d 350, ¶ 6, 12. Thus, even though the adult classification
scheme contains major differences from the juvenile classification scheme, the
Supreme Court has concluded that the new classifications are punitive as applied to
juveniles as well. See also In re Lilley, 8th Dist. No. 98905, 2013-Ohio-3616, ¶ 11-
12; In re C.W., 4th Dist. No. 11CA918, 2013-Ohio-2483, ¶ 7.
{¶10} Finally, we add that the Supreme Court has concluded that the
automatic tier III lifetime registration and community notification for a public-registry-
qualified juvenile-offender registrant (PRQJOR) (with no chance of reclassification for
25 years) is not just punitive, but is cruel and unusual punishment. In re C.P., 131
Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 86. The effect of this holding is
discussed further in assignment of error number three. From here, we proceed under
the overriding principle that the S.B. 10 amendments are punitive as applied to
juveniles. This leads to appellant’s first assignment of error.
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ASSIGNMENT OF ERROR NUMBER ONE
{¶11} Appellant sets forth three assignments of error, the first of which
provides:
{¶12} “Revised Code Section 2152.83(A) violates double jeopardy by allowing
the juvenile court to impose multiple punishments for the same offense.”
{¶13} Pursuant to the statutory division contested by appellant here, a court
that adjudicates a 16 or 17 year old sexually oriented offender “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 * * *.”
(Emphasis added). R.C. 2152.83(A). Appellant essentially contends that the
emphasized portion of the statute must be struck as violative of the double jeopardy
clause. He urges that because he was not classified at the dispositional hearing, he
could not thereafter be classified.
{¶14} Appellant begins by stating that juveniles are protected by double
jeopardy principles. See In re Cross, 96 Ohio St.3d 328, 2002-Ohio-4183, 774
N.E.2d 258, ¶ 23 (cannot impose sentence after probation completed), citing Breed v.
Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (cannot transfer juvenile
to adult court for second trial after adjudicatory hearing). As the Ohio Supreme Court
considers S.B. 10 punitive, appellant moves to the portion of the double jeopardy
clause that prohibits multiple criminal punishments for the same offense in
successive proceedings, noting that the federal and state double jeopardy clauses
are coextensive. See State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780
N.E.2d 250, ¶ 7 (the protection afforded by the double jeopardy clause in the Fifth
Amendment to the United States Constitution and that in Section 10, Article I of the
Ohio Constitution are coextensive). Appellant concludes that since the classification
is considered punitive, the deferred classification hearing is now an unconstitutional
successive proceeding that imposes more criminal punishment, citing the Supreme
Court’s Raber case in support.
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{¶15} In Raber, the defendant was indicted for sexual battery (F2) but pled
guilty to sexual imposition (M3). At sentencing, the parties disputed whether the
sexually oriented offense involved consensual conduct based upon a statutory
provision that one need not be classified if the offense involved “consensual sexual
conduct or consensual sexual contact” with a victim over 18 years old who is not
under the custodial authority of the perpetrator. The trial court asked the state to
demonstrate the lack of consent, but according to the Ohio Supreme Court, the state
failed to do so. State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d
684, ¶ 3. The parties agreed to brief the sexually oriented offender issue, but did not
do so. A week later, the trial court entered judgment sentencing the defendant to
sixty days in jail (thirty suspended) and two years of community control, without
ordering him to register as a sexually oriented offender.
{¶16} Ten months thereafter, the court scheduled a classification hearing,
which eventually proceeded (before another judge). The defendant’s former girlfriend
testified that she consented to vaginal but not anal sex. The court found that the
defendant was a tier I sex offender, and at another hearing held one month later, the
court provided the defendant with notice of his duties. The court then entered
judgment on the classification, which ended up being more than 14 months after the
final judgment of conviction and sentence.
{¶17} The Supreme Court invalidated the classification due to principles
surrounding the finality of final judgments and double jeopardy. First, the Court also
stated that the trial court lacked authority to modify its final judgment, noting that
there is nothing in the record showing that at the time the court sentenced the
defendant, it erred in failing to classify him and finding there was no clerical error or
issue that would result in a void sentence. Id. at ¶ 20.
{¶18} The Court then pointed to their recent Williams decision that: “R.C.
Chapter 2950 is punitive.” Id. at ¶ 23, quoting State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. And, the Court noted that it recently held
that automatic, lifetime registration and notification on certain juvenile offenders
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violated the constitutional prohibition against cruel and unusual punishment. Id.,citing In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 86.
{¶19} After reiterating the punitive nature of S.B. 10, the Court addressed the
pertinent double jeopardy protection: “The Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution protects against the imposition of
multiple criminal punishments for the same offense in successive proceedings.” Id.
at ¶ 24, citing Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d
450 (1997). “If a defendant has a legitimate expectation of finality, then an increase
in that sentence is prohibited by the double jeopardy clause.” Id., quoting United
States v. Fogel, 829 F.2d 77, 87 (D.C.Cir.1987).
{¶20} The Court thus concluded the defendant had a legitimate expectation of
finality when the court sentenced him and double jeopardy principles prohibited the
trial court from reopening his case, conducting a separate trial to determine whether
the sexual activity at issue here was consensual, and then classifying the defendant
as a sex offender. Id. at ¶ 26. In sum, the trial court lacked authority to reopen the
case to reconsider the final judgment it had entered, and the protections against
double jeopardy barred it from classifying the defendant as a sex offender more than
a year after it imposed sentence. Id. at ¶ 27.
{¶21} Appellant concludes that classifying him as a juvenile offender
registrant at any time other than his disposition likewise violates double jeopardy and
thus R.C. 2152.83(A)’s timing mechanism is unconstitutional. The state emphasizes
the express authority for the bifurcated disposition in the statute of which an accused
in presumed to have notice. The state additionally points out that the juvenile court’s
March 17, 2013 sentencing entry also provided appellant direct notification that
classification would be deferred until his release. The state further expresses that the
deferred hearing provides juveniles with time to be treated while in the juvenile facility
in order to ameliorate certain negative tier classification criteria. As the trial court
stated, “this provision favors juvenile defendants as they have the advantage of
progressing in treatment before classification designation is set.”
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{¶22} Raber is not a case on point. The statute applicable to the adult in
Raber provided that the court shall provide notice of the registration requirement at
sentencing. See Raber, 134 Ohio St.3d 250 at ¶ 16, citing R.C. 2950.03(A)(2). To
the contrary, R.C. 2152.83(A) specifically instructs the juvenile court to conduct the
classification at release rather than at disposition where the 16 or 17 year old is
committed to a secure facility. The clear terms of the statute dispel any notion that
the disposition order is the type of order that would bar subsequent juvenile
classification.
{¶23} Appellant’s original brief does not raise the portion of Raber dealing
with principles concerning modification of a final judgment. His reply brief, however,
raises issues with entering a further sentence on a final order. Therein, he cites In re
Sekulich, 65 Ohio St.2d 13, 15, 417 N.E.2d 1014 (1981), where a juvenile court’s
dispositional order fined a child $50 and transferred the case to another county’s
juvenile court for further disposition. The Supreme Court held that the first county
entered a final appealable dispositional order, noting that the transfer statute does
not allow transfer after disposition has been made. We note that a reply brief is not
the place to raise a new argument.
{¶24} In any event, Sekulich did not deal with sexual offender classification or
an express statute allowing a post-disposition or a continued-disposition proceeding
to occur. Statutorily, a classification can be made after disposition where the juvenile
is sent to a secure facility. Thus, unlike in Raber or Sekulich, the juvenile court does
in fact have authority to hold the later hearing and impose the contested item, here a
classification into a tier. Such statute also establishes that the pertinent portion of the
double jeopardy clause is not violated here.
{¶25} That is, as aforementioned, “The Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution protects against the imposition of
multiple criminal punishments for the same offense in successive proceedings.”
Raber, 134 Ohio St.3d 350 at ¶ 24, citing Hudson, 522 U.S. at 99. This protection
prohibits the punishment only “[if a defendant has a legitimate expectation of finality *
* *.” Id., quoting Fogel, 829 F.2d at 87.
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{¶26} For instance, a defendant has no legitimate expectation of finality
regarding a sentence that is subject to direct review. See State v. Holdcroft , 137
Ohio St.3d 526, 1 N.E.2d 382, 2013-Ohio-5014, ¶ 16, citing State v. Roberts, 119
Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818. The Ohio Supreme Court pointed
out in Holdcroft how the United States Supreme Court charges a defendant with
knowledge of a statute allowing the state to appeal from a certain sentence and thus
he has no expectation of finality in his sentence until the appeal is concluded or the
time to appeal has run. Id., citing United States v. DiFrancesco, 449 U.S. 117, 136,
101 S.Ct. 426, 66 L.Ed.2d 328 (1980).
{¶27} In addressing whether an increase of a sentence on review constitutes
multiple punishment in violation of the double jeopardy clause, the DiFrancesco Court
explained that one may try to argue that “the defendant perceives the length of his
sentence as finally determined when he begins to serve it, and that the trial judge
should be prohibited from thereafter increasing the sentence * * *.” DiFrancesco, 449
U.S. at 139. However, the Court concluded: “that argument has no force where, as
in the dangerous special offender statute, Congress has specifically provided that the
sentence is subject to appeal. Under such circumstances, there can be no
expectation of finality in the original sentence.” Id. (also emphasizing that the
punishment authorized by Congress was “clear and specific” and noting that the
statute represents “a considered legislative attempt to attack a specific problem”).
{¶28} Finally, the Ohio Supreme Court has upheld a statute which allows a
judge to add any forgotten post-release control after sentence (and before release
from the sentence) based upon the principle that the defendant has foreknowledge
from the statute that such altered punishment can occur. State v. Singleton, 124
Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 33 (this citation is to the holding
regarding prospective application of the statute; the other holding in Singleton, that
the statute cannot be applied retroactively, was affected by subsequent decision but
is not pertinent here), citing Fogel, 829 F.2d at 87 (“A defendant has a legitimate
expectation in the finality of a sentence unless he is or should be aware at
sentencing that the sentence may permissibly be increased.”).
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{¶29} In sum, the juvenile court has statutory authority to enter a classification
upon release from the secure facility rather than at disposition. The juvenile being
sentenced to a secure facility has statutory notice that classification will not occur at
initial disposition but will be deferred until release. Because the statute clearly
provides for a deferred classification until the time of release from the secure facility,
the juvenile had no “legitimate expectation of finality” with regards to classification at
the time of the disposition order committing him to a secure facility and thus there is
no double jeopardy violation. This assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶30} Appellant’s second assignment of error contends:
{¶31} “The Jefferson County Juvenile Court erred when it classified M.R. as a
juvenile offender registrant because M.R.’s status as a mandatory registrant under
R.C. 2152.83(A) violates the Equal Protection Clauses of the United States and Ohio
Constitutions.”
{¶32} Where a child aged 16 or 17 commits a sexually oriented offense, the
juvenile court must classify the child as a juvenile offender registrant. See R.C.
2152.83(A)(1). However, the choice of which tier to place the child in is discretionary
with the juvenile judge (as opposed to adults who are automatically placed in a tier
based upon the offense committed). See R.C. 2152.83(A)(2); R.C. 2950.01(E)-(G),
(M). The juvenile judge need not classify a first-time 14 or 15 year old sex offender;
thus, whether to classify those juvenile sexual offenders at all is discretionary with the
juvenile judge. See R.C. 2152.83(B)(1)-(2). And, a juvenile court cannot classify
those aged 13 or under. See R.C. 2152.83.
{¶33} Appellant states that these classifications based upon age violate the
equal protection clause contending that there is no rational basis for the disparate
treatment of juveniles whom he believes are similarly situated. He urges that
differential treatment is not supported by empirical evidence. Appellant cites to some
studies that he reviewed in his memorandum to the trial court on this issue, dealing
with the negative impact of registration on juveniles, the importance of treatment in
decreasing recidivism risk for juveniles, and the lack of studies proving that juvenile
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registration decreases recidivism. The focus seemed to be on juvenile classification
as a whole.
{¶34} The juvenile court’s entry overruling the equal protection argument
found that differences based upon the age of a juvenile are self-evident and that
nothing was presented in the case which would overcome the statute’s presumption
of constitutionality. At his classification hearing, appellant presented the testimony of
a psychologist who testified in accordance with the studies he cited but did not make
statements regarding the classification among juveniles. The juvenile court pointed
out that even if the court had discretion concerning whether to classify appellant (as it
does for a 14 or 15 year old), the court still would have chosen to classify him. (Tr.
32).
{¶35} An equal protection analysis progresses the same under both the Ohio
and the United States Constitutions. State v. Thompkins, 75 Ohio St.3d 558, 561,
664 N.E.2d 926 (1996). Where the challenger does not raise a suspect classification
or a fundamental right, the test provides that class distinctions among individuals are
permissible if they bear some rational relationship to a legitimate governmental
objective. Id. Notably, similarly situated persons must be treated alike, unless a
rational basis justifies treating them differently; the test “does not require things which
are different in fact * * * to be treated in law as though they were the same.” Ohio
Apt. Assn. v. Levin, 127 Ohio St.3d 76, 2010-Ohio-4414, 936 N.E.2d 919, ¶ 38 (thus
a comparison of only similarly situated individuals is imperative). See also City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313(1985) (equal protection directs that all persons similarly situated should be treated
alike).
{¶36} Under the rational basis level of scrutiny, legislative classifications can
be invalidated only if they bear no relation to the state's goals and no ground can be
conceived to justify them. Thompkins, 75 Ohio St.3d at 561. As we consider any
conceivable justification, the state has no actual litigation burden in facing a
challenge to the rationality of a statutory classification. Levin, 127 Ohio St.3d 76, at ¶
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34; State v. Williams, 88 Ohio St.3d 513, 531, 728 N.E.2d 342 (2000). Rather, the
challenger must negate every conceivable basis. Williams, 88 Ohio St.3d at 531.
{¶37} This rational basis test is not stringent and is even considered
“relatively relaxed” as “the drawing of lines that create distinctions is peculiarly a
legislative task and an unavoidable one.” Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Classifications
are thus presumed to be valid. Id. Perfect classifications are not necessary let alone
possible, and a law is not violative of equal protection rights merely because the
classifications are imperfect. Id. at 314, 316. Consequently, there is “substantial
deference to the predictive judgment” of the legislature. Williams, 88 Ohio St.3d at
531.
{¶38} The Eleventh District has addressed an argument by a 15 year old that
the juvenile registration classifications based upon age violate his equal protection
rights as a line is drawn so that 13 year olds are not subject to registration. In re
B.D., 11th Dist. No. 2011-P-0078, 2012-Ohio-4463. The court first suggested that
the juvenile failed to show that a 14 or 15 year old is similarly situated to a 13 year
old. Id. at ¶ 31. The B.D. court continued that even if proximity in age suggests a
similar situation: the legislature made a policy decision to exclude 13 year olds from
the classification scheme; this is a uniquely legislative function; the line drawn is
presumed constitutional; and the legislature’s decision was not unreasonable. Id. at
¶ 31-21.
{¶39} The Third District has discussed the legislative concern for sex offender
recidivism and public safety and concluded that the legislature rationally concluded
that the lower the age of the offender, the reduced likelihood of recidivism, thereby
granting the juvenile court discretion in determining whether a sex offender
classification is needed when the offender is younger. In re J.M., 3d Dist. No. 16-12-
01, 2012-Ohio-4109, ¶ 32. See also In re Forbess, 3d Dist. No. 02-09-20, 2010-
Ohio-2826, ¶ 56 (overruling assignment of error that R.C. 2152.83 violated the
juvenile’s right to equal protection because it subjects offenders to mandatory or
discretionary classifications depending upon their age at the time of the offense;
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stating that the position of their district is that the juvenile classifications do not violate
the equal protection clause).
{¶40} The Fourth District has also concluded that juvenile offender age
classifications do not violate equal protection principles because the lines drawn are
rationally related to legitimate government interest in protecting the public. In re
C.P., 4th Dist. No. 09CA41, 2010-Ohio-1484, ¶ 25. That case was reversed by the
Supreme Court on other grounds involving the mandatory, automatic classification for
public registry qualified juveniles, under cruel and unusual punishment and due
process, without a ruling on the equal protection holdings made below. See In re
C.P., 131 Ohio St.3d 513, 2012-Ohio-1445, 967 N.E.2d 729.
{¶41} Here, appellant, who was 16 at the time of the offense, raises both the
line at age 14 and the line at age 16. First, it is not difficult to rationally conclude that
children who are 13 and under are not similarly situated to a 16 or 17 year old. A
better case for similarly situated juveniles could be made for a 16 year old versus a
15 year old, which appellant also asserts. Even if juveniles of those ages are
similarly situated, the drawing of the lines here has some rational basis to a legitimate
interest.
{¶42} Appellant essentially states there is no scientific evidence that a 16 year
old is more likely to reoffend than a 14 or 15 year old. However, this validly enacted
statute is presumed constitutional, and the state need not present such evidence.
See Levin, 127 Ohio St.3d 76, at ¶ 34. Rather, the court is to evaluate whether the
line drawn bears any conceivable rational relation to the state's legitimate goals. See
Thompkins, 75 Ohio St.3d at 561
{¶43} The state cites many laws that draw age-based lines for juveniles
based upon legislative decisions. See, e.g., R.C. 5139.05(A) (10 year old can be
held in DYS custody for certain offenses, but those 9 and under cannot); R.C.
2152.10 (discretionary bindover for juveniles 14 and over but not for those 13 and
under; mandatory bindover for juveniles 16 and 17 for certain offenses but not for
those 14 and 15 unless certain priors; and no mandatory bindover for those under 16
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for category 2 offenses). Legislatures regularly classify juveniles based upon age;
this is the function of the legislature.
{¶44} The purpose of sex offender registration is ultimately to protect the
public. See R.C. 2950.02 (including by exchanging information between agencies).
As the state argues, it is a core premise of the juvenile system that as a juvenile
matures, he becomes more responsible and thus more accountability can be
expected. The state urges that the prohibition on classifying those 13 and under, the
discretionary classification of those 14 and 15, and the mandatory classification of
sex offenders who are 16 and 17 evinces a rational common sense adoption of the
theory that younger children are less culpable, less accountable, and less dangerous.
It is not unreasonable to act under the belief that it is easier to reform, retrain, and
rehabilitate a younger child than an older child. As the state points out, an older
juvenile will also “age out” of the system sooner than a younger juvenile and thus
there is less time available to provide the older juvenile with rehabilitative services,
making registration for tracking and agency coordination purposes more desirable.
{¶45} As appellant’s studies suggest, juvenile sex offenders are more
responsive to treatment than adult sex offenders. And, this is reflected in the
deferred classification until release after treatment in the secure facility, the review at
final disposition, and the ability to seek declassification three years later and again
thereafter. It is not irrational for legislators to conclude that the farther a juvenile is
from adulthood, the more responsive he will be to treatment. From this, the
legislature could reason that the lower the age of the offender, the reduced likelihood
of recidivism and thus the decreased need for tracking.
{¶46} We rule that there is some rational, conceivable reason for drawing a
line so that 14 and 15 year old sex offenders will only be subject to discretionary
classification rather than the mandatory classification (into a discretionary tier) that 16
and 17 years old are subject to. Accord In re Forbess, 3d DIst. No. 02-09-20 at ¶ 56;
In re J.M., 3d Dist. No. 16-12-01 at ¶ 32 (not equal protection violation to make
juvenile court’s decision to classify discretionary or mandatory depending on
juvenile's age at the time of the offense). See also In re B.D., 11th Dist. No. 2011-P-
-14-
0078 (rational basis for drawing line at 14 for beginning classifications). This
assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER THREE
{¶47} Appellant’s final assignment of error provides:
{¶48} “The Jefferson County Juvenile Court erred when it classified M.R. as a
tier II juvenile offender registrant because the imposition of any classification period
that extends beyond the age jurisdiction of the juvenile court violates a youth’s right
to due process and constitutes cruel and unusual punishment under the United
States and Ohio Constitutions.”
{¶49} Juvenile offenders must register every year for 10 years in tier I, every
six months for 20 years in tier II, and every 90 days for life in tier III. R.C. 2950.07(B).
Pursuant to R.C. 2953.83(E), a juvenile classification order shall remain in effect for
the period of time specified in R.C. 2950.07, subject to any reclassification or
declassification. “The child's attainment of eighteen or twenty-one years of age does
not affect or terminate the order, and the order remains in effect for the period of time
described in this division.” R.C. 2953.83(E).
{¶50} Moreover, in providing that dispositional orders are temporary and
continue for the period designated in the order until terminated or modified by the
court or the child reaches age 21, R.C. 2152.22(A) provides an exception for the
juvenile offender provisions contained in R.C. 2152.82 through 2152.86 and for any
other law specifying a different duration for a dispositional order. Yet another statute
provides that if a child over 14 is adjudicated a delinquent child for committing a
sexually oriented offense or a child-victim oriented offense, then R.C 2152.82 through
2152.86 apply. R.C. 2152.19(A). “In addition to any order of disposition it makes of
the child under this chapter, the court may make any determination, adjudication, or
order authorized under sections 2152.82 to 2152.86 and Chapter 2950 of the
Revised Code and shall make any determination, adjudication, or order required
under those sections and that chapter.” R.C. 2152.191(B).
{¶51} Finally, the juvenile court has exclusive original jurisdiction to “conduct
the hearings, and to make the determinations, adjudications, and orders authorized
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or required under sections 2152.82 to 2152.86 and Chapter 2950. of the Revised
Code regarding a child who has been adjudicated a delinquent child * * *.” R.C.
2151.23(A)(15). See also State ex rel. N.A. v. Cross, 125 Ohio St.3d 6, 2010-Ohio-
1471, ¶ 13 (stating that even though N.A. was over 21 and could not be incarcerated,
“the delinquency proceeding is still important because if he is adjudicated a
delinquent child based on the rape offenses, N.A. would still be subject to the
juvenile-offender-registration provisions.”).
{¶52} Appellant states that the requirement that the classifications extend
past age 21, which is the maximum time he could be incarcerated, violates principles
of due process and constitutes cruel and unusual punishment. He emphasizes that
the purpose of the juvenile system is supposed to be guidance and rehabilitation
rather than punishment, pointing out that the registration scheme is now considered
punitive. He relies on the principles from the Supreme Court’s In re C.P. case to
support his due process and cruel and unusual punishment arguments here.
{¶53} In that case, a juvenile appealed his designation as a tier III juvenile
offender registrant and public-registry-qualified juvenile-offender registrant
(PRQJOR) for whom there was automatic classification into tier III with lifelong
registration (albeit subject to review after 25 years) and community notification as
required by R.C. 2152.86. The Court struck R.C. 2152.86 as violative of both due
process and the prohibition on cruel and unusual punishment. See In re C.P., 131
Ohio St.3d 513, 2012-Ohio-1445, 967 N.E.2d 729. As to the latter doctrine, Article I,
Section 9 of the Ohio Constitution and the Eighth Amendment to the United States
Constitution prohibit the infliction of cruel and unusual punishments.
{¶54} In this context, the review concerned whether a particular punishment is
disproportionate to the crime considering the nature of the offender. Id. at ¶ 25-27.
In analyzing R.C. 2152.86, the Supreme Court emphasized that the juvenile at issue
remained under the jurisdiction of the juvenile court and pointed to the nature of sex
offenses as being far removed from murder. Id. at ¶ 28, 42-43, distinguishing
Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010)
(sentence of life without parole prohibited for juvenile offender who did not commit
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homicide) and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1(2005) (death penalty prohibited for those who committed crime before age 18).
{¶55} The In re C.P. Court pointed out that the automatic community
notification requirement is no longer necessary in order for states to be considered
compliant with the requirements of federal sex offender law, evidencing a national
shift in consensus on that topic. Id. at ¶ 34-37. The Court looked at culpability and
pointed out that juveniles are less culpable than adults and “their bad acts are less
likely to reveal an unredeemable corruptness.” Id. at ¶ 39-40.
{¶56} The Court then looked at the severity of the punishment and stated that
registration and notification requirements for life, with the possibility of having them
lifted only after 25 years, are “especially harsh punishments for a juvenile,” adding
that the length of the punishment is extraordinary for a juvenile and is imposed at an
age at which the offender’s character is not yet fixed. Id. at ¶ 44-45. The Court
noted the stigmatization and the hampering of the juvenile’s education, relationships,
and employment. Id. at ¶ 45 (noting that a juvenile who remains under the authority
of the juvenile court and has thus been adjudged redeemable will have his entire life
evaluated through the prism of his juvenile adjudication).
{¶57} The Court next reviewed the penological justifications and concluded
that lifetime registration and notification requirements run contrary to the system’s
goals of rehabilitating the offender and aiding his mental and physical development,
stating: “Notification and registration anchor the juvenile offender to his crime.” Id. at
¶ 47. It was difficult to say how much public safety is affected in individual cases,
because the PRQJOR statutory scheme gives the juvenile judge no role in
determining how dangerous a juvenile might be or what level of registration or
notification would be adequate to preserve the safety of the public. Id. at ¶ 48.
{¶58} The Court found the PRQJOR penalties meet the statutory objective of
accountability but the depth and duration of accountability that R.C. 2152.86 requires
of a juvenile offender are excessive, and the statute only minimally meets the goal of
restoring the victim. Id. at ¶ 49. Retribution is not as justified with a less culpable
defendant, and juveniles are less likely to be deterred by the threat of negative
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consequences to their future reputation. Id. at ¶ 51-52. It was noted that the effects
of the stigma can actually lead to reoffending. Id. at ¶ 54-55. The Court concluded
that penological theory was not adequate to justify the imposition of the lifetime
registration and notification requirements in R.C. 2152.86 and that for a juvenile
offender who remains under the jurisdiction of the juvenile court, automatic imposition
of lifetime sex-offender registration and notification requirements is cruel and unusual
punishment under the Eighth Amendment. Id. at ¶ 58-59.
{¶59} In re C.P. also evaluated whether it was cruel and unusual punishment
under the Ohio Constitution, stating that lack of proportionality is a key factor and
then evaluating whether the punishment is so greatly disproportionate to the offense
that it shocks the community’s sense of justice. Id. at ¶ 60. It was emphasized that
under R.C. 2152.86, the juvenile court “is given absolutely no discretion over the
portion of the juvenile's penalty that could extend for a lifetime” and a lifetime
punishment is imposed with no chance for reconsideration of its appropriateness for
25 years. Id. at ¶ 61. The Court distinguished the case from punishments for other
juvenile offenders, whose cases are reevaluated when their juvenile disposition ends
and at regularly scheduled intervals thereafter. Id.
{¶60} The Supreme Court also found that the punishment of lifetime exposure
for a wrong committed in childhood runs counter to the private nature of our juvenile
court system and the core principle of confidentiality “is trampled by any requirement
of public notification.” Id. at ¶ 62-68 (and reiterating the stigma concerns involving in
notification). It was concluded that the “public punishments required by R.C. 2152.86
are automatic, lifelong, and contrary to the rehabilitative goals of the juvenile system”
and thus “shock the sense of justice of the community” and violate Ohio's prohibition
against cruel and unusual punishments. Id. at ¶ 69.
{¶61} The Court then proceeded to invalidate R.C. 2152.86 on due process
grounds as well, after expressing that juvenile due process standards are inexact and
the predominant concern is fundamental fairness to be balanced with flexibility and
the informality of juvenile court. Id. at ¶ 71-73. The Court pointed out how it had
recently ruled that a juvenile was not entitled to a jury to make the factual findings
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required for imposing the adult portion of a serious youthful offender sentence,
emphasizing the discretionary role of the juvenile judge in the disposition of a juvenile
case. Id. at ¶ 74-77, citing In re D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d
209.
{¶62} The Court criticized R.C. 2152.86’s automatic imposition of a lifetime
punishment (with no chance of reconsideration for 25 years), which was described as
an adult punishment, without the benefit of a juvenile judge weighing the
appropriateness of that punishment. Id. at ¶ 77-78. (and noting that the court cannot
consider individual factors about a child and his background, cannot determine how
often the child must register or where, or determine how publication may affect
rehabilitation). The Court concluded that automatic long-term punishment is contrary
to the juvenile system's core focus on individual, corrective treatment and
rehabilitation and that fundamental fairness requires that the judge decide the
appropriateness of any such penalty. Id. In stating that it also conflicts with the
discretion of the judge under the serious youthful offender statute (as judge has the
discretion not to invoke the adult sentence), the Court noted that the punishment
lasts far longer than the jurisdiction of the juvenile court. Id. at ¶ 83.
{¶63} The Ohio Supreme Court made some strong statements in that case.
However, it was a case about automatic lifetime tier III classification with community
notification for certain juveniles. Notably, appellant does not argue that classification
itself is cruel and unusual punishment or violative of due process, but rather, he
argues that continued application of the registration requirements beyond age 21
constitutes cruel and unusual punishment and violates due process.
{¶64} We cannot conclude that the mere fact that registration may be required
past age 21 would make a scheme cruel and unusual or shocking to a sense of
justice under the analysis set forth In re C.P. There is mandatory classification for 16
and 17 years olds such as appellant; however, there is no automatic tier placement
based upon the offense as the juvenile court has discretion on the choice of tier after
the juvenile has been provided with an evidentiary hearing and after the juvenile has
had an opportunity to seek treatment. (And, in the case at bar, the juvenile court
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declared it would have classified appellant even if classification were discretionary for
16 and 17 year olds, and the court imposed tier II using that discretion rather than tier
I.)
{¶65} Moreover, the tier placement can be appealed by the juvenile. In
addition, the juvenile court can decrease the tier classification upon the juvenile’s
completion of the disposition. R.C. 2152.84(A)(1), (2)(c) (16 or 17 year olds can be
reclassified at completion of disposition but cannot yet be declassified as 14 or 15
year olds can be). Three years thereafter, the juvenile can file a petition seeking
declassification (or reclassification) and can then file another petition three years later
and yet another petition five years later. R.C. 2152.85(B)(1)-(3). Importantly, there
are no issues with community notification (automatic or discretionary) as that only
becomes an option under tier III.
{¶66} The state notes that the First District has overruled an argument that
due process is violated by requiring registration past age 21. In re Raheem L., 1st
Dist. No. C-100608, 2013-Ohio-2423, appeal not allowed by 136 Ohio St.3d 1560,
2013-Ohio-4861, 996 N.E.2d 987 and 137 Ohio St.3d 1478, 2014-Ohio-176, 2
N.E.3d 271 (reconsideration denied). See also In re N.Z., 11th Dist. No. 2012–L–
100, 2014-Ohio-157, ¶ 1, 36-47 (overruling juvenile’s argument that classification is
unconstitutional in violation of due process clause because the required registration
period extends beyond his 21st birthday). The state also points out that after
invalidating R.C. 2152.86, the In re C.P. court remanded the case (to the appellate
court) for further proceedings without merely striking the classification and with no
indication that the remaining statutes should not be applied to that juvenile on
remand, suggesting that the remaining statutes would apply to that juvenile. That is,
appellant seeks to apply the analysis in that case to the remaining statutes which the
Supreme Court likely envisioned would govern C.P on remand.
{¶67} In its exhaustive analysis, the In re C.P. Court made a mere passing
reference to the fact that registration extends beyond typical juvenile jurisdiction, and
their comment mainly related to how very far past age 21 a lifetime classification
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goes. Many juveniles are not even classified until just before or on their 21st birthday
on their release from the secure facility.
{¶68} In sum, there is no community notification involved here, and the
juvenile judge has a role in determining how dangerous the juvenile might be or what
level of registration would be adequate to preserve the safety of the public. See In re
C.P., 131 Ohio St.3d 513 at ¶ 48. Considering that the judge has initial discretion in
choosing a tier for a 16 or 17 year old, who can present evidence at a hearing in
support of a lower tier, and considering that the classification can be reduced at final
disposition and can be eliminated three years after final disposition, the mere fact that
the classification can extend beyond age 21 is not cruel and unusual, nor does it
shock the conscience or raise concerns with fundamental fairness. See id. at ¶ 61
(distinguishing automatic lifetime tier III from punishments for other juvenile
offenders, whose cases are reevaluated when their juvenile disposition ends and at
regularly scheduled intervals thereafter).1 This assignment of error is overruled.
{¶69} For the foregoing reasons, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.
1
Moreover, any declaration that juvenile classifications must be eliminated upon the juvenile’s
mere attainment of age 21 based upon an extension of the In re C.P. holding should come from the
Ohio Supreme Court. See In re C.P., 131 Ohio St.3d 513 at ¶ 60 (cruel and unusual punishment
holdings are rare). See also In re C.W., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 80
(the meaning of “fundamental fairness” can be “opaque” and applying this aspect of due process is an
“uncertain enterprise”).