In re: D.D. , 2015 Ohio 3999 ( 2015 )

[Cite as In re: D.D., 2015-Ohio-3999.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.D. A MINOR CHILD : JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2015CA0043
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Juvenile Division,
Case No. 2014JCR02406
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 28, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO CHARLYN BOHLAND
Prosecuting Attorney Assistant State Public Defender
250 East Broad Street, Suite 1400
By: KATHLEEN O. TATARSKY Columbus, OH 43215
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, OH 44702
Stark County, Case No. 2015CA00043 2
Baldwin, J.
{¶1} Appellant D.D. appeals from the February 19, 2015 Judgment Entry of the
Stark County Court of Common Pleas, Juvenile Division, adjudicating him a Tier I sex
offender.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 16, 2014, a complaint was filed alleging that appellant D.D.,
(DOB 8/3/96), was delinquent by reason of having committed the offense of rape in
violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The complaint alleged
that the victim was twelve years old at the time. At his arraignment on October 29, 2014,
appellant entered a plea of not true.
{¶3} Thereafter, on December 18, 2014, appellant withdrew his former plea of
not true and entered a plea of true to the charge of rape. The trial court found appellant
a delinquent offender. Pursuant to a Judgment Entry filed on February 4, 2015,
appellant was committed to the Department of Youth Services (DYS) for a minimum of
one year. Appellant also was adjudicated a Tier I sex offender and was ordered to
register in person annually for a period of ten years. Via a separate Judgment Entry
filed on February 19, 2015, appellant was found to be delinquent and committed to DYS
for a minimum of one year and not more than his attainment of the age of 21 years.
{¶4} Appellant now raises the following assignments of error on appeal:
{¶5} THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.D AS A TIER I
JUVENILE OFFENDER REGISTRANT BECAUSE THE CLASSIFICATION PERIOD
EXTENDS BEYOND THE AGE JURISDICTION OF THE JUVENILE COURT, IN
Stark County, Case No. 2015CA00043 3
VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION; AND ARTICLE I, SECTIONS 9 AND 16, OHIO CONSTITUTION.
{¶6} THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.D AS A TIER I
JUVENILE OFFENDER REGISTRANT BECAUSE D.D’S STATUS AS A MANDATORY
REGISTRANT UNDER R.C. 2152.83(A) VIOLATES THE EQUAL PROTECTION
CLAUSES OF THE U.S. AND OHIO CONSTITUIONS.
{¶7} THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.D AS A TIER I
JUVENILE OFFENDER REGISTRANT PURSUANT TO R.C. 2152.83(A), BECAUSE
THE STATUTE VIOLATES D.D’S RIGHT TO DUE PROCESS AS GUARANTEED BY
THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION; AND, ARTICLE I,
SECTION 16, OHIO CONSTITUTION.
{¶8} D.D. 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.
I
{¶9} Appellant, in his first assignment of error, contends that the imposition of a
classification period on him violates his right to due process and constitutes and
unusual punishment. Appellant emphasizes that the purpose of the juvenile system is
supposed to be rehabilitation rather than punishment, pointing out that the registration
scheme is now considered punitive.
{¶10} With regards to due process, this Court has previously found that
registration requirements extending past the child's twenty-first birthday does not violate
a child's due process rights. In re D.R., 5th Dist. Knox No. 13CA27, 2014–Ohio–588; In
Stark County, Case No. 2015CA00043 4
re D.S., 5th Dist. Licking No. 13–CA–58. 2014–Ohio–867; In re: A.W., 5th Dist. Knox
No. 15CA3, 2015-Ohio-3463. As we previously noted in these cases, the registration
requirements in R.C. 2152.83 bear a rational relationship to the legitimate goal of
rehabilitation. Id. In accordance with our holdings in these cases, we overrule
appellant's argument with regard to due process.
{¶11} In D.R., this Court stated that though the imposition of R.C. 2152.83
registration requirements “may be punitive, they may help achieve the goal of
rehabilitation by motivating the juvenile to comply with treatment in order to reduce or
eliminate the registration requirement.” 5th Dist. Knox No. 13CA27, 2014–Ohio–588.
Additionally, as noted by the Seventh District, “we cannot conclude that the mere fact
that registration may be required past age twenty-one would make a scheme cruel and
unusual or shocking to a sense of justice.” In re M.R., 7th Dist. Jefferson No. 13 JE 30,
2014–Ohio–2623. While there is mandatory classification for sixteen and seventeen
year olds such as appellant, 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. Id. Further, the tier placement can be
appealed by the juvenile, the juvenile can, after three years of disposition, file a petition
seeking declassification or reclassification, and another petition later. R.C. 2152.85; Id.
{¶12} As in D.R., M.R., and A.W., there is no community notification involved
here, 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, and
the classification can be eliminated or modified three years after final disposition. 5th
Dist. Knox No. 13CA27, 2014–Ohio–588; 7th Dist. Jefferson No. 13 JE 30, 2014–Ohio–
Stark County, Case No. 2015CA00043 5
2623. Accordingly, “the mere fact that the classification can extend beyond age twenty-
one is not cruel and unusual, nor does it shock the conscience or raise concerns with a
fundamental fairness.” In re M.R., 7th Dist. Jefferson No. 13 JE 30, 2014–Ohio–2623;
see also In re J.O., 2nd Dist. Montgomery No. 25903, 2014–Ohio–2813 (holding that a
juvenile court imposing a registration requirement that extends beyond the age of
twenty-one is not cruel and unusual punishment).
{¶13} Appellant's first assignment of error is, therefore, overruled.
II
{¶14} Appellant, in his second assignment of error, argues that R.C. 2152.83(A)
violates the equal protection clauses of the U.S. and Ohio Constitutions because
sixteen and seventeen year olds are required to register solely based on their age, while
children thirteen years or younger at the time of the offense are not subject to sexual
offender registrant classification, and the juvenile court has discretion to classify
children who are fourteen and fifteen at the time of the offense. Appellant contends this
age-based classification is not rationally related to the State's objective in making the
classification.
{¶15} To determine the constitutionality of a statue under the equal protection
clause, we must first determine whether a fundamental right or suspect class is
involved. Conley v. Shearer, 64 Ohio St. 3d 284, 595 N.E.2d 862 (1992). “A statutory
classification which involves neither a suspect class nor a fundamental right does not
violate the Equal Protection Clause * * * if it bears a rational relationship to a legitimate
government interest.” McCrone v. Bank One Corp., 107 Ohio St. 3d 272, 2005–Ohio–
6505, 839 N.E.2d 1. Suspect classes include race, sex, religion, and national origin; age
Stark County, Case No. 2015CA00043 6
is excluded and is not a suspect class. Adamsky v. Buckeye Local School Dist., 73 Ohio
St. 360, 653 N.E.2d 212 (1995).
{¶16} Where the challenger does not raise a suspect classification or a
fundamental right, the test provides that classifications among individuals are
permissible and the statute upheld if it is rationally related to a legitimate purpose, even
if the classifications are not precise. State v. Thompkins, 75 Ohio St. 3d 558, 664 N.E.2d
926 (1996); Groch v. General Motors, 117 Ohio St. 3d 192, 2008–Ohio–546, 883 N.E.2d
377. Under a rational basis review, the judgment of the General Assembly is granted
substantial deference. State v. Williams, 88 Ohio St. 3d 513, 728 N.E.2d 342 (2000).
{¶17} In D.R., we found that though the imposition of R.C. 2152.83 registration
requirements may be punitive, they “may help achieve the goal of rehabilitation by
motivating the juvenile court to comply with treatment in order to reduce or eliminate the
registration requirement.” 5th Dist. Knox No. 13CA27, 2014–Ohio–588. See also In re.
A.W., supra.
{¶18} Further, other districts considering equal protection arguments have found
that the age classification scheme in R.C. 2152.83 bears a rational relationship to a
legitimate government interest and does not violate a juvenile's right to equal protection
of the law. The Eleventh District found in In re B.D. that the legislature made a policy
decision to exclude those thirteen and under from the classification scheme, found this
decision is a uniquely legislative function, and that the legislature's decision was not
unreasonable. 11th Dist. Portage No.2011–P–0078, 2012–Ohio–4463.
{¶19} The Seventh District found that the drawing of the line so that fourteen and
fifteen year old sex offenders are only subject to discretionary classification rather than
Stark County, Case No. 2015CA00043 7
the mandatory classification (into a discretionary tier) that sixteen and seventeen year
olds are subject to has some rational basis to a legitimate government interest. In re
M.R., 7th Dist. Jefferson No. 13 JE 30, 2014–Ohio–2623. Since the purpose of the sex
offender registration is ultimately to protect the public (R.C. 2950.02), as a juvenile
matures, he becomes more responsible and thus more accountability can be expected.
Id. The court found that, “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 age of the offender, the reduced likelihood of
recidivism and thus the decreased need for tracking.” Id.
{¶20} The Third District similarly found that the age classification scheme in R.C.
2152.83 bears a rational relationship to a legitimate government interest and does not
violate the appellant's right to equal protection of the law. In the Matter of J.M., 3rd Dist.
Wyandot No. 16–12–01, 2012–Ohio–4109. The court found that if the purpose of the
sexual offender classification registration is to “protect the public due to the likelihood of
recidivism among sex offenders, the General Assembly 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.” Id.
{¶21} In accordance with our decision in D.R., A.W. and the decisions from other
appellate districts, we find that the statute is rationally related to a legitimate
government interest.
{¶22} Appellant's second assignment of error is, therefore, overruled.
Stark County, Case No. 2015CA00043 8
III
{¶23} Appellant, in his third assignment of error, maintains that R.C. 2152.83(A),
which mandates that a juvenile court issue a juvenile sex offender classification order,
violates fundamental fairness. Appellant notes that the juvenile court has no discretion
under the statute to determine whether or not sex offender classification and registration
is appropriate.
{¶24} A similar argument was raised in In re R.A.H., 8th Dist. No. 101936, 2005-
Ohio-3342. In such case, the juvenile argued that R.C. 2152.83 violated his due
process rights because it creates a nonrebuttable presumption that the juvenile who
committed the crime automatically posed a future risk to the community. In rejecting
such argument, the court, held, in relevant part, as follows at paragraphs 27-28:
The constitutional rights which prohibit a state from
depriving a person of “life, liberty, or property, without due
process of law” are derived from both the federal and Ohio
Constitutions. See Fourteenth Amendment, U.S.
Constitution, and Section 1, Article I of the Ohio Constitution.
See also State v. Hayden, 96 Ohio St. 3d 211, 2002–Ohio–
4169, 773 N.E.2d 502, ¶ 6. Procedural due process requires
that the government provide constitutionally adequate
procedures before depriving individuals of a protected liberty
interest. Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532,
541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
Stark County, Case No. 2015CA00043 9
We conclude the statute does not violate the due
process clause. The trial court has discretion in deciding
which tier applies to the 16– or 17–year–old sex offender,
who can present evidence at a hearing in support of a lower
tier. R.C. 2152.83(A)(2). Moreover, the classification can be
reduced once the juvenile completes disposition (R.C.
2152.84(A)(1), (2)(c)) and can be eliminated three years
after final disposition. R.C. 2152.85(A)(1)-(3), (B)(1)-(3).
Accordingly, we conclude that the mandatory provision does
not violate the due process clause.
{¶25} As noted by appellee, the trial court, at the February 4, 2015 hearing,
stated that it would revisit the decision to classify appellant as an offender when
appellant was completed with his treatment at DYS.
{¶26} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶27} Appellant, in his fourth assignment of error, argues that he received
ineffective assistance of trial counsel because trial counsel failed to object to the
constitutionality of appellant’s classification. Appellant references the arguments made
with respect to the above three assignments of error.
{¶28} To demonstrate ineffective assistance of counsel, appellant must establish
the following as set forth in State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus:
Stark County, Case No. 2015CA00043 10
{¶29} 2. Counsel's performance will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel's
performance. ( State v. Lytle [1976], 48 Ohio St. 2d 391, 2 O.O.3d 495, 358 N.E.2d 623;
Strickland v. Washington [1984], 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674,
followed.)
{¶30} 3. To show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different.
{¶31} Having found, in our disposition of appellant’s first, second and third
assignments of error, that appellant’s classification was constitutional, appellant’s fourth
assignment of error is overruled. Appellant cannot show that he was prejudiced by his
counsel’s failure to object to the constitutionality of appellant’s classification.
Stark County, Case No. 2015CA00043 11
{¶32} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.