In re T.S. , 2021 Ohio 638 ( 2021 )

[Cite as In re T.S., 2021-Ohio-638.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
IN RE:
CASE NO. 14-20-08
T.S.,
ADJUDICATED DELINQUENT CHILD OPINION
AND SERIOUS YOUTHFUL OFFENDER.
IN RE:
CASE NO. 14-20-09
T.S.,
ADJUDICATED DELINQUENT CHILD OPINION
AND SERIOUS YOUTHFUL OFFENDER.
IN RE:
CASE NO. 14-20-10
T.S.,
ADJUDICATED DELINQUENT CHILD OPINION
AND SERIOUS YOUTHFUL OFFENDER.
IN RE:
CASE NO. 14-20-11
T.S.,
ADJUDICATED DELINQUENT CHILD OPINION
AND SERIOUS YOUTHFUL OFFENDER.
Case Nos. 8-20-08 through 8-20-13
IN RE:
CASE NO. 14-20-12
T.S.,
ADJUDICATED DELINQUENT CHILD OPINION
AND SERIOUS YOUTHFUL OFFENDER.
IN RE:
CASE NO. 14-20-13
T.S.,
ADJUDICATED DELINQUENT CHILD OPINION
AND SERIOUS YOUTHFUL OFFENDER.
Appeals from Union County Common Pleas Court
Juvenile Division
Trial Court Nos. 21620183, 21620184, 21720059, 21720060,
21720106 and 21720306,
Judgments Affirmed
Date of Decision: March 8, 2021
APPEARANCES:
Lauren Hammersmith and Brooke Burns for Appellant
Melissa A. Chase for Appellee
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Case Nos. 8-20-08 through 8-20-13
SHAW. J,
{¶1} Delinquent child, T.S., appeals the June 16, 2020 judgments of the
Union County Court of Common Pleas, Juvenile Division, granting the
prosecution’s motion to invoke the adult portion of T.S.’s dispositional sentence,
terminating the juvenile portion of his disposition, and classifying T.S. as a tier III
sex offender.
Procedural History
{¶2} This case arises out of six delinquency complaints filed against T.S.
alleging that he committed the offense of rape. Five of these cases carried a Serious
Youthful Offender (“SYO”) specification along with various other charges. All six
cases were consolidated for a change of plea hearing, which took place on January
16, 2018. At the hearing, T.S. entered an admission in all six cases to one count of
rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree, and the trial
court adjudicated him delinquent. The trial court held a dispositional hearing on
January 25, 2018, and placed T.S. into the custody of the Ohio Department of Youth
Services (“DYS”) for a minimum of one year and a maximum not to exceed his 21st
birthday. The trial court designated T.S. as a SYO in the five cases carrying the
specification, and imposed a nine-year prison term in each case, to be served
concurrently. This “adult portion” of T.S.’s sentence was stayed pending his
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compliance with the juvenile portion of his disposition, which included sex offender
treatment while in the custody of DYS.
{¶3} On April 16, 2020, the prosecution filed a “Motion to Invoke the Adult
Portion of the Sentence Pursuant to R.C. 2152.14,” arguing that T.S. had met the
criteria set forth in R.C. 2152.14(A)(1)(a)-(c), and that T.S. had engaged in conduct
that creates a substantial risk to the safety or security of the institution, the
community, or the victim under R.C. 2151.14(A)(2)(b). Specifically, the
prosecution noted that T.S. had failed to complete his sex offender treatment despite
two years of being engaged in the program. In addition to his lack of progress with
the sex offender treatment program, T.S. maintained a lack empathy for his victims,
struggled to identify when he is in an offense cycle, and continued to engage in
inappropriate behavior with a female volunteer and a stepmother of another youth
in the custody of the DYS facility. The prosecution requested that the court set the
matter for a hearing prior to T.S.’s 21st birthday in June 2020.
{¶4} On June 12, 2020, the trial court held hearing on the prosecution’s
motion to invoke the adult portion of T.S.’s sentence, where the trial court heard
testimony from several witnesses familiar with T.S.’s lack of progress with sex
offender treatment, as well as his infractions and behavioral concerns while in the
custody of DYS. Upon the conclusion of the evidence, the trial court found that the
prosecution had met its burden, ordered the adult portion of T.S.’s sentence to be
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Case Nos. 8-20-08 through 8-20-13
imposed, and terminated the juvenile portion of his disposition. The trial court then
conducted a juvenile-offender registrant hearing and designated T.S. as a tier III sex
offender. The trial court journalized the invocation of T.S.’s adult sentence and
termination of the juvenile portion of his disposition along with T.S.’s sex offender
classification in its June 16, 2020 Judgment Entries.
{¶5} It is from these judgment entries that T.S. now appeals, asserting the
following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE JUVENILE COURT ERRED WHEN IT CLASSIFIED T.S.
AS A PUBLIC REGISTRY QUALIFIED JUVENILE
REGISTRANT (PRQJOR), PURSUANT TO R.C. 2152.86, IN
VIOLATION OF In re C.P., 131 OHIO ST.3d 513, 2012-OHIO-
1446, 967 N.E.2d 729, ¶ 86.
ASSIGNMENT OF ERROR NO. 2
T.S. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF THE SIXTH AND FOURTEEN
AMENDMENTS TO THE U.S. CONSTITUTION; AND
ARTICLE I, SECTION 10, OHIO CONSTITUTION.
First Assignment of Error
{¶6} In his first assignment of error, T.S. claims that the trial court erred by
classifying him as a Public Registry Qualified Juvenile Offender Registrant
(“PRQJOR”) pursuant to R.C. 2152.86, which the Supreme Court of Ohio found to
be unconstitutional in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446. In In re
C.P., the Supreme Court held that an automatic lifetime registration for a new class
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Case Nos. 8-20-08 through 8-20-13
of juvenile sex-offender registrants, called PRQJORs, constituted cruel and unusual
punishment under the federal and state Constitutions. Specifically, the Supreme
Court found unconstitutional a provision of that statute that required an automatic
imposition of tier III sex offender classification on a juvenile offender who receives
an SYO dispositional sentence.
{¶7} For its part, the State argues that the trial court did not classify T.S. as
a PRQJOR under R.C. 2152.86, which it concedes was held unconstitutional in In
re C.P., but rather the State contends the record clearly reflects that the trial court
recognized the constitutional infirmity of R.C. 2152.86 and properly classified T.S.
as a tier III sex offender under the procedure for juvenile-offender registrants set
forth in R.C. 2151.83, which requires a trial court to conduct a tier-classification
hearing to determine whether the juvenile offender should be classified as a sex
offender, instead of imposing an automatic, lifetime classification as established
under R.C. 2152.86. However, the State also acknowledges that the record indicates
that the trial court inadvertently referred to T.S. as a PRQJOR at the classification
hearing, despite its recognition of the holding in C.P.
The Trial Court’s Statements at the Classification Hearing
{¶8} At the beginning of the hearing conducted by the trial court on the
State’s motion to invoke the adult portion of T.S.’s sentence, the trial court stated:
All right, so the matter before the Court are the motions—a
Motion to Invoke the adult portion of the sentences imposed on
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Case Nos. 8-20-08 through 8-20-13
January 25, 2018, and the five cases, the first five cases I
announced and, also, before the Court is a hearing on the Court’s
decision to classify [T.S.] as a Juvenile Sex Offender Registrant,
Tiers I through III, and that’s the two cases—the two motions—
hearings, I should say, are pursuant to 2152.14, the Motion to
Invoke, and 2152.86, the classification proceedings or procedures,
as well as, In Re: CP—the Supreme Court Case 131 Ohio St. 3d
513.
(June 12, 2020 Hrg. at 6).
{¶9} The trial court conducted the invocation hearing allowing for the
presentation of evidence in support of the State’s motion and cross-examination by
T.S.’s counsel. After finding the evidence supported granting the motion to invoke
the adult portion of T.S.’s sentence, the trial court proceeded to the sex offender
classification component of the hearing. The record reflects that the trial court
handed T.S. a form entitled, “Explanation of Duties to Register as Juvenile Offender
Registrant or Child Victim Offender Duties commencing on or after January 1, 2008
(ORC 2950.04 or 2950.041),” and explained to T.S. “[t]his is an explanation of your
duties to register as a juvenile offender registrant.” (June 12, 2020 Hrg. at 189).
{¶10} Even though the trial court correctly noted on the record that T.S. was
being classified under R.C. 2152.83 as a tier III sex offender, the trial court marked
a box on the form indicating that T.S. was also classified as a “Public Registry
Qualified Juvenile Offender Registrant, subject to community notification
provisions.” (Doc. No. 157). Moreover, the trial court stated the following on the
record:
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You’ve been adjudicated a delinquent for committing a sexually
oriented offense as defined by Ohio Revised Code Section 2950.01.
And you are classified as a Tier III Sex Offender.
The Court is, also, requiring that you be and finding that you are
a public registry qualified juvenile offender registrant subject to
community notification provisions.
(June 12, 2020 Hrg. at 190). The trial court proceeded to address in detail each
registration requirement for a PRQJOR at the hearing, by stating “[a]s a public
registry qualified juvenile offender registrant, you are also required to…” on four
separate occasions. (Id. at 192-94). The trial court then explained to T.S. that “[a]s
a Tier III offender, you are required to comply with all of the above described
requirements for the following period of time and frequency * * * for your lifetime
with in person verification every 90 days.” (Id. at 193).
{¶11} Notably, however, the trial court’s June 16, 2020 Judgment Entries
make no mention of T.S. being classified as a PRQJOR nor do they contain any
citation to R.C. 2152.86. Rather, the trial court’s Judgment Entries indicate that the
classification hearing was conducted pursuant to the procedure established for
juvenile-offender registrants in R.C. 2152.83, and ordered T.S. to “be classified as
a Tier III Juvenile Sex Offender Registrant in accord with R.C. 2152.83 subject to
victim and community notifications pursuant to R.C. 2950.10 and R.C. 2950.11.”
(Doc. No. 155 at 18).
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Case Nos. 8-20-08 through 8-20-13
Discussion
{¶12} On appeal, the State argues that a court speaks through its judgment
entries, and the judgment entries properly classified T.S. under the appropriate
statute. We agree. More importantly, it is the judgment entries in this case that
serve as the sole guide and mechanism for the implementation and enforcement of
the trial court’s sentence, classification, and registration requirements as a tier III
sex offender, and not the check box form or verbal comments of the court thereon
at the hearing, which are clearly directional on their face to apprise T.S. of his
registration requirements as a tier III sex offender. Nor incidentally, would any of
the erroneous comments of the trial judge, however misplaced, come into play or
become justiciable or prejudicial to T.S., until such time as a law enforcement entity
would attempt to impose upon T.S. any of the inapplicable and unconstitutional
registration requirements of a PRQJOR classification, which has not happened and
is not likely to happen this case. In sum, everything T.S. and law enforcement needs
to know about T.S.’s legitimate classification and registration requirements is
clearly ascertainable from the judgment entries in this case and there is no indication
T.S. has been or would be held to any other standard based solely on the superfluous
check box and comments of the judge at the hearing.
{¶13} In the absence of any demonstrative prejudice to T.S.’s rights and
responsibilities regarding his classification as a tier III sex offender based solely
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Case Nos. 8-20-08 through 8-20-13
upon the extraneous advisements of the judge at the hearing, and given that the
record reflects that the judgment entries of the trial court fully complied with the
procedure set forth in R.C. 2152.83, based upon the nature of the evidence presented
in conjunction with the juvenile-offender registrant hearing, we find no merit in
T.S.’s argument or in the suggestion that the classification itself must be vacated or
remanded merely in order for the trial court to amend its comments made at the
hearing.
{¶14} Accordingly, we overrule the first assignment of error.
Second Assignment of Error
{¶15} In his second assignment of error, T.S. argues that he received
ineffective assistance when his trial counsel failed to object to the trial court’s
discussion of the PRQJOR classification at the hearing.
Legal Standard
{¶16} To prove an allegation of ineffective assistance of counsel, T.S. must
satisfy a two-prong test. First, T.S. must establish that his trial counsel’s
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of the syllabus. Second, T.S. must demonstrate that he
was prejudiced by counsel’s performance. Strickland, 466 U.S. at 687. To show
that he has been prejudiced by counsel’s deficient performance, T.S. must prove
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Case Nos. 8-20-08 through 8-20-13
that, but for counsel’s errors, the result of the trial would have been different. State
v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
{¶17} The failure to make either the deficiency or prejudice showing defeats
a claim of ineffective assistance of counsel. State v. Frye, 10th Dist. Franklin Nos.
14AP-988, 14AP-989, ¶ 11, citing Strickland, 466 U.S. at 697. Thus, “a court need
not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”
Strickland at 697.
{¶18} Given our resolution of the first assignment of error, we find that T.S.
has failed to show that his trial counsel’s performance fell below an objective
standard of reasonable representation in order to constitute ineffective assistance of
counsel. Accordingly, we conclude that T.S. has failed to substantiate his
ineffective assistance of counsel claim and we overrule the second assignment of
error.
{¶19} Based on the foregoing, the assignments of error are overruled and the
judgments are affirmed.
Judgments Affirmed
WILLAMOWSKI, P.J., concurs in Judgment Only.
ZIMMERMAN, J., concurs.
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