State v. Buttery (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Buttery, Slip Opinion No. 2020-Ohio-2998.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-2998THE STATE OF OHIO, APPELLEE, v. BUTTERY, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Buttery, Slip Opinion No. 2020-Ohio-2998.]
Criminal law—R.C. 2950.04—Constitutional law—Due process—Right to a jury
trial—Failure to register as a sex offender following a delinquency
adjudication—Statute does not use an adjudication of delinquency to
enhance a sentence—Juvenile adjudication is not an element of the
offense—Failure-to-report offense is a violation of a court order—
Conviction does not violate right to a jury or to due process.
(No. 2018-0183—Submitted August 6, 2019—Decided May 21, 2020.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-160609, 2017-Ohio-9113.
_________________
KENNEDY, J.
{¶ 1} In this discretionary appeal from a judgment of the First District Court
of Appeals, we are asked to determine whether a conviction for failure to register
SUPREME COURT OF OHIO
as a sex offender under R.C. 2950.04 violates a defendant’s due-process and jury-
trial rights guaranteed by the Ohio Constitution and United States Constitution,
when the defendant’s duty to register arises from a juvenile court’s delinquency
adjudication. The court of appeals held that such a conviction is not
unconstitutional. We agree, and we therefore affirm the judgment of the appellate
court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Appellant, Robert Buttery, was 14 years old when he committed what
would have been two counts of fourth-degree-felony gross sexual imposition if
committed by an adult. On October 14, 2011, Buttery was adjudicated delinquent
as to the offenses. He was placed on probation by the juvenile court and was
provided treatment for his behavior, including placement in a treatment facility. On
January 13, 2012, after a hearing, Buttery was classified as a juvenile-offender
registrant and as a Tier I sex offender and was ordered to comply with the
registration, notification-of-address-change, and verification duties imposed by
R.C 2950.04, 2950.041, 2950.05, and 2950.06 for a period of ten years, with in-
person verification annually.
{¶ 3} On November 23, 2015, when Buttery was 19 years old, he was
indicted for violating a duty to register as a sex offender pursuant to R.C. 2950.04.
The indictment alleged that the duty to register arose as a result of his juvenile
adjudication; because he had been adjudged delinquent for gross sexual imposition,
which would have been a fourth-degree felony if committed by an adult, the failure-
to-register charge was a fourth-degree felony by operation of R.C.
2950.99(A)(1)(a)(ii). Buttery moved to dismiss the indictment for various
procedural reasons (none of which were based on either the Ohio or federal
Constitutions), arguing that various errors that occurred in the juvenile court had
rendered his sex-offender classification void. The trial court denied the motion.
Buttery then entered a no-contest plea, and the trial court found him guilty. The
2
January Term, 2020
court sentenced him to three years of community control and informed him that an
18-month prison term would be imposed upon a violation of community control.
{¶ 4} Buttery appealed the conviction to the First District Court of Appeals,
arguing that his conviction was unconstitutional based on this court’s decision in
State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, which was
decided after Buttery’s conviction but during the pendency of his appeal. In Hand,
this court held that using a defendant’s adjudication of delinquency to enhance the
degree of or sentence for a subsequent crime the defendant committed as an adult
violates the Due Process Clauses of the Ohio Constitution and the Fourteenth
Amendment to the United States Constitution “because it is fundamentally unfair
to treat a juvenile adjudication as a previous conviction that enhances either the
degree of or the sentence for a subsequent offense committed as an adult.” Id. at
¶ 37.
{¶ 5} The First District Court of Appeals held that Hand was
distinguishable and affirmed the judgment of the trial court. The court reasoned
that unlike the statutory scheme at issue in Hand, R.C. 2950.04 does not treat the
juvenile adjudication as an equivalent to an adult conviction; instead, under R.C.
2950.04, the duty to register arises from an order issued by a court after the juvenile
has been adjudicated delinquent. The appellate court held, “The juvenile
adjudication is not a penalty-enhancing element; it is an element of the crime of
failing to register.” 2017-Ohio-9113 at ¶ 20.
{¶ 6} Buttery appeals from that holding. This court accepted one
proposition of law for review:
Juvenile adjudications cannot satisfy elements of an offense
committed as an adult. Fifth, Sixth, and Fourteenth Amendments,
United States Constitution; Sections 5 and 16, Article I, Ohio
Constitution. State v. Hand, [149 Ohio St.3d 94, 2016-Ohio-5504,
3
SUPREME COURT OF OHIO
73 N.E.3d 448]; State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-
1519, 41 N.E.3d 1156; Alleyne v. United States, 570 U.S. [99], 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013); Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
See 152 Ohio St.3d 1462, 2018-Ohio-1795, 97 N.E.3d 499.
LAW AND ANALYSIS
Plain Error
{¶ 7} There is no dispute that Buttery failed to raise any constitutional issue
at the trial-court level; he raised his due-process argument for the first time in the
court of appeals. The First District did not address whether Buttery forfeited this
argument by failing to raise it in the trial court. “[T]he question of the
constitutionality of a statute must generally be raised at the first opportunity and, in
a criminal prosecution, this means in the trial court.” State v. Awan, 22 Ohio St.3d
120, 122, 489 N.E.2d 277 (1986). Nevertheless, “this court has discretion to
consider a forfeited constitutional challenge to a statute. We may review the trial
court decision for plain error * * *.” State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. To establish that plain error occurred, we
require a showing that there was an error, that the error was plain or obvious, that
but for the error the outcome of the proceeding would have been otherwise, and
that reversal must be necessary to correct a manifest miscarriage of justice. Id. We
hold that the trial court did not err in this case.
Apprendi, Alleyne, and Hand
{¶ 8} Buttery argues that a juvenile adjudication cannot satisfy an element
of an offense committed by an adult. He argues that his conviction under R.C.
2950.04 is based on his adjudication of delinquency. Because that adjudication was
not the product of a jury trial, Buttery argues that it cannot be a factual basis for his
conviction as an adult. Essentially, then, Buttery argues that no adult who was
4
January Term, 2020
ordered to register as a sex offender in a juvenile proceeding may be charged with
a violation of R.C. 2950.04 for failing to register.
{¶ 9} Our analysis begins with two United States Supreme Court cases that
this court relied on in Hand—Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013). In Apprendi, the court addressed a New Jersey law
under which the maximum prison sentence for possession of a firearm for an
unlawful purpose could be increased 10 to 20 years if the trial judge found by a
preponderance of the evidence that the defendant had committed his crime with a
racial bias. The court held that using judicial fact-finding to enhance a sentence
violated the defendant’s due-process and jury-trial rights: “Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi at 490. In Alleyne, the court dealt with a similar issue
regarding mandatory minimum sentences in regard to a Virginia statute under
which the minimum sentence for carrying a firearm in relation to a crime of
violence increased from five years to seven years if the judge determined by a
preponderance of the evidence that the firearm had been brandished during the
crime. The court held that the law was unconstitutional because “[a]ny fact that,
by law, increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne at 103.
{¶ 10} In Hand, this court also dealt with a sentence enhancement, but it did
not involve the judicial fact-finding at issue in Apprendi and Alleyne. Hand
addressed the exception that Apprendi created for “the fact of a prior conviction,”
Apprendi at 490, in regard to sentence enhancement. Under Apprendi, any fact
beside the fact of a prior conviction that increases a penalty beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt. In Hand, the defendant had been sentenced under R.C. 2929.13(F)(6), which
5
SUPREME COURT OF OHIO
requires a mandatory prison term if a defendant who committed a first- or second-
degree felony had been previously convicted of a first- or second-degree felony.
Hand had been adjudicated delinquent as a juvenile for an offense that would have
been aggravated robbery if committed by an adult. The issue, then, was whether
that juvenile adjudication operated as a first-degree-felony conviction to enhance
his sentence. Because R.C. 2929.13(F)(6) did not define the word “convicted,” the
trial court applied R.C. 2901.08(A), which equated a juvenile adjudication to a
conviction for purposes of determining the offense to be charged and the sentence
to be imposed when a later offense was committed.
{¶ 11} We noted in Hand that under Apprendi, “prior convictions are
treated differently only because ‘unlike virtually any other consideration used to
enlarge the possible penalty for an offense, * * * a prior conviction must itself have
been established through procedures satisfying the fair notice, reasonable doubt,
and jury trial guarantees.’ Jones v. United States, 526 U.S. 227, 249, 119 S.Ct.
1215, 143 L.Ed.2d 311 (1999).” (Ellipses sic.) Hand, 149 Ohio St.3d 94, 2016-
Ohio-5504, 73 N.E.3d 448, at ¶ 31.
{¶ 12} The question in Hand was whether a juvenile adjudication was a
prior conviction for purposes of sentence enhancement. Hand recognized that in
the juvenile system, which is civil in nature and emphasizes treatment and
rehabilitation to prevent treatment of juveniles as criminals, a jury trial is not
required under the state and federal Constitutions. Id. at ¶ 15-19. This court
reasoned that “[i]t is contradictory and fundamentally unfair to allow juvenile
adjudications that result from these less formal proceedings to be characterized as
criminal convictions that may later enhance adult punishment.” Id. at ¶ 35. This
court concluded that treating a juvenile adjudication as an adult conviction was
contrary to Apprendi: “To convert an adjudication into a conviction when the
adjudication process did not provide the right to have a jury test the elements of
that offense offends due process and Apprendi and thus the state cannot treat a prior
6
January Term, 2020
juvenile adjudication as a prior conviction to enhance the penalty for a subsequent
conviction.” Id. at ¶ 36. The court recognized that its view differed with that
adopted by the majority of courts in other jurisdictions. Id. at ¶ 31. Other courts,
for instance, have held that “the protections juvenile defendants receive—notice,
counsel, confrontation and proof beyond a reasonable doubt—ensure that the
proceedings are reliable.” Welch v. United States, 604 F.3d 408, 429 (7th
Cir.2010).
Carnes
{¶ 13} In State v. Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d
138, this court declined to extend Hand. In Carnes, we considered the
constitutionality of a weapons-under-disability statute that includes a prior
juvenile-delinquency adjudication as a disability that prohibits a person from
lawfully possessing a firearm. Distinguishing Hand, we held that although a prior
juvenile adjudication is an element of the weapons-under-disability offense, the
statute is not unconstitutional.
{¶ 14} Pursuant to R.C. 2923.13(A)(2), it is illegal for a person to possess a
firearm, if “[t]he person is under indictment for or has been convicted of any felony
offense of violence or has been adjudicated a delinquent child for the commission
of an offense that, if committed by an adult, would have been a felony offense of
violence.” When he was a juvenile, Anthony Carnes had been adjudicated
delinquent for an offense that would have been felonious assault, a felony of
violence, if committed by an adult; 19 years after that adjudication Carnes was
charged with possessing a firearm under a disability.
{¶ 15} This court pointed out that the statute we addressed in Hand, R.C.
2901.08(A), “expressly provided that a juvenile adjudication ‘is a conviction for a
violation of the law or ordinance for purposes of determining the offense with
which the person should be charged and * * * the sentence to be imposed.’ ”
(Emphasis added in Hand.) Id. at ¶ 8, quoting R.C. 2901.08(A). But in Hand, we
7
SUPREME COURT OF OHIO
had faulted that statute for “convert[ing] an adjudication into a conviction when the
adjudication process did not provide the right to have a jury test the elements of
that offense.” Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, at ¶ 36.
{¶ 16} We stated in Carnes that in comparison, R.C. 2923.13, the weapons-
under-disability statute, did not equate a juvenile adjudication with an adult
conviction but instead considered a juvenile adjudication itself as one of several
discrete conditions that prevented a person from legally possessing a firearm. Other
disabilities, in addition to adult convictions and juvenile adjudications, include
being a fugitive or being drug dependent. R.C. 2923.13(A)(1) and (4).
{¶ 17} Further, this court noted that R.C. 2923.13(A)(2) does not use
juvenile adjudications for sentence-enhancement purposes. Instead, “the juvenile
adjudication is an element of the offense; it is the disability.” (Emphasis sic.)
Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138, at ¶ 10. This court
addressed the argument that classifying the juvenile adjudication as an element of
the crime is more constitutionally consequential than its being a sentence
enhancement; we held that because of the nature of the disability statute, the
existence of the disability, rather than its reliability, is at issue. Id. at ¶ 10, 15.
Carnes noted that the legislature had assessed the risks: “Inherent in R.C.
2923.13(A)(2) is a policy decision made by the legislature that allowing weapons
in the hands of individuals with certain prior juvenile adjudications poses an
increased risk to public safety, as does allowing weapons in the hands of those with
other disabling conditions such as chronic alcoholism or drug dependence.” Carnes
at ¶ 16. Simply being adjudicated delinquent was enough to be considered a risk
to public safety; the statute did not equate a juvenile adjudication to an adult
conviction. And we held that “the lack of a right to a jury trial * * * does not make
prior juvenile adjudications unreliable for risk-assessment purposes.” Id. at ¶ 17.
8
January Term, 2020
{¶ 18} We also pointed out in Carnes that the General Assembly created a
process in the statutory scheme through which a person may seek relief from a
disability and that Carnes had not availed himself of that opportunity. Id. at ¶ 12.
R.C. 2950.04
{¶ 19} Buttery urges us to hold that juvenile adjudications cannot satisfy
elements of an offense committed as an adult. But this court established in Carnes
that a juvenile adjudication can form an element of an offense committed as an
adult, at least when the adjudication is not treated as equivalent to a conviction and
its use is not based on its reliability.
{¶ 20} As in Carnes, we decline to extend Hand in this case. At the outset,
we note the differences between the statutory scheme at issue in this case and those
at issue in Hand and Carnes. In both of the earlier cases, a delinquency adjudication
led to a consequence that was unrelated to the juvenile adjudication. In Hand, the
consequence of the delinquency adjudication for what would have been a first-
degree felony if committed by an adult was that the sentence imposed following a
later conviction was enhanced; in Carnes, the consequence of the delinquency
adjudication for what would have been a felony of violence if committed by an
adult was that it was illegal for Carnes to possess a firearm. But here, the
delinquency adjudication itself is not at issue. We are instead dealing with
Buttery’s violation of a court order instructing him to register as a sex offender.
R.C. 2950.04(A)(3)(a) states:
Each child who is adjudicated a delinquent child for
committing a sexually oriented offense and who is classified a
juvenile offender registrant based on that adjudication shall register
personally with the sheriff, or the sheriff's designee, of the county
within three days of the delinquent child's coming into a county in
9
SUPREME COURT OF OHIO
which the delinquent child resides or temporarily is domiciled for
more than three days.
{¶ 21} At the time of his offenses, Buttery was 14 years old and therefore
subject to R.C. 2152.83(B), which allows a court to determine, after a juvenile has
been found delinquent for committing a sexually oriented offense, whether to
classify the juvenile as a juvenile-offender registrant.
Under R.C. 2152.83(B), juvenile-offender-registrant classification
is not mandatory; a judge may classify a juvenile as a juvenile-
offender registrant only after first conducting a hearing pursuant to
R.C. 2152.83(B)(2) to determine whether the delinquent child
should be so classified. As part of that hearing, a judge must
consider numerous statutory factors—including information about
the offender, the victim, the nature of the crime, and other factors—
before determining whether the juvenile should be subject to
juvenile-offender-registrant classification. R.C. 2152.83(D).
In re I.A., 140 Ohio St.3d 203, 2014-Ohio-3155, 16 N.E.3d 653, ¶ 6. If the court
classifies the juvenile as a juvenile-offender registrant, it shall “[i]ssue an order that
* * * specifies that the child has a duty to comply with sections 2950.04, 2950.041,
2950.05 and 2950.06 of the Revised Code.” R.C. 2152.83(B)(2)(b). The juvenile
court issued such an order to Buttery in this case.
{¶ 22} Therefore, in this case, the statute at issue does not use the
adjudication of delinquency to enhance a sentence, as the statute at issue in Hand
did. Instead, the elements of the crime under R.C. 2950.04 are the duty to register
and the violation of that duty. The duty to register was not automatically imposed
on Buttery as the result of his delinquency adjudication; it was imposed only after
10
January Term, 2020
a hearing and consideration by the juvenile court of certain statutory factors. And
we have already held that the creation of a duty to register under R.C. 2152.83(B)
that extends into adulthood meets the requirements of due process. In In re D.S.,
146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, ¶ 40, this court held that
“the imposition of juvenile-offender-registrant status under R.C. 2152.82 or
2152.83(B) with corresponding registration and notification requirements that
continue beyond the offender’s reaching age 18 or 21 does not violate the offender’s
due-process rights.”
{¶ 23} For a defendant like Buttery, the duty to register as a sex offender is
imposed after a hearing, which the juvenile court conducts to determine whether
registration is appropriate for a juvenile already adjudicated as delinquent.
Therefore, unlike in Hand, a defendant does not face additional repercussions
because of his or her original juvenile adjudication. Instead, he or she faces
punishment for violating a court order.
{¶ 24} Further, R.C. 2950.04 does not equate a juvenile adjudication with a
criminal conviction, unlike R.C. 2901.08(A), the statute at issue in Hand. Instead,
it states that a person who has a duty to register as a sex offender must indeed
register as a sex offender or face criminal consequences. R.C. 2950.04 does not
say that a juvenile adjudication is an adult conviction. It does not provide an
additional penalty for recidivists based upon a prior juvenile adjudication. R.C.
2950.04 does not enhance a sentence for the violation of a different statute. Rather,
it punishes a failure to comply with the requirements of registration.
{¶ 25} In Carnes, we noted that in the weapons-under-disability statutory
scheme, the legislature had created a process by which a person could seek relief
from the disability. Likewise, in the juvenile-sex-offender statutory scheme, an
offender has the ability to have his or her duty to register modified or terminated.
R.C. 2152.85(A) and (B). This court has pointed to the juvenile court’s
11
SUPREME COURT OF OHIO
jurisdiction—even after completion of the court’s disposition—to modify or
terminate the juvenile’s registration status.
Specifically, a juvenile-sex-offender registrant may petition the
juvenile court, beginning at three years following the classification
order, to request reclassification to a lower tier or to terminate the
registration requirement altogether. R.C. 2152.85(A) and (B). After
the court has ruled on the initial petition, the statute permits
additional opportunities for review, first after another three-year
period and then every five years thereafter. R.C. 2152.85(B). * * *
Thus, the juvenile court judge maintains discretion throughout the
course of the offender’s registration period to consider whether to
continue, terminate, or modify the juvenile’s classification.
In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, ¶ 36.
{¶ 26} Therefore, a juvenile-sex-offender registrant has multiple
opportunities to have the duty to register lifted. Like Carnes, who failed to avail
himself of the ability to remove his disability through court action, Buttery has not
availed himself of the opportunity to have his duty to register lifted.
{¶ 27} This case and Carnes share another key element. In Carnes, this
court relied on its conclusion that the existence of the juvenile adjudication, rather
than its reliability, was at issue in regard to the weapons-under-disability statute.
The General Assembly had assessed the risk and determined that allowing people
with juvenile adjudications involving violent felony offenses to possess firearms
presented a danger. Likewise, here, “[t]he General Assembly has seen fit to impose
registration sanctions in cases involving sex offenses to protect the public.” State v.
Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, ¶ 36. The duty
to register applies to adults convicted of sexually oriented offenses committed in
12
January Term, 2020
Ohio and to juvenile offenders who a judge determines should be classified as a
juvenile-offender registrant, as well as to “each person who is convicted, pleads
guilty, or is adjudicated a delinquent child in a court in another state, in a federal
court, military court, or Indian tribal court, or in a court in any nation other than the
United States for committing a sexually oriented offense.” Again, the statute does
not equate a juvenile adjudication with a criminal conviction. Instead, it considers
a person who has been adjudicated delinquent and who a judge has classified as a
juvenile-offender registrant to be among those groups of people who must register
as sex offenders. In R.C. 2950.02, the General Assembly sets forth its reasoning
for requiring registration for juvenile offenders and others:
(A) The general assembly hereby determines and declares
that it recognizes and finds all of the following:
***
(2) Sex offenders and child-victim offenders pose a risk of
engaging in further sexually abusive behavior even after being
released from imprisonment, a prison term, or other confinement or
detention, and protection of members of the public from sex
offenders and child-victim offenders is a paramount governmental
interest.
(3) The penal, juvenile, and mental health components of the
justice system of this state are largely hidden from public view, and
a lack of information from any component may result in the failure
of the system to satisfy this paramount governmental interest of
public safety described in division (A)(2) of this section.
***
(6) The release of information about sex offenders and child-
victim offenders to public agencies and the general public will
13
SUPREME COURT OF OHIO
further the governmental interests of public safety and public
scrutiny of the criminal, juvenile, and mental health systems as long
as the information released is rationally related to the furtherance of
those goals.
(B) The general assembly hereby declares that, in providing
in this chapter for registration regarding offenders and certain
delinquent children who have committed sexually oriented offenses
or who have committed child-victim oriented offenses * * * who
otherwise will live in or near a particular neighborhood, it is the
general assembly’s intent to protect the safety and general welfare
of the people of this state.
{¶ 28} As with the weapons-under-disability statute analyzed in Carnes, it
is the existence of the duty to register, not the reliability of the underlying
adjudication, that is at issue in the statute. The General Assembly has determined
that certain juveniles adjudicated delinquent for certain offenses must register as
sex offenders to protect the public; R.C. 2950.04 enforces that policy. As we stated
in Carnes, a juvenile adjudication is not unreliable for risk-assessment purposes.
{¶ 29} Another aspect of the statutory scheme in this case distinguishes it
from the statutes in Hand and Carnes. Juvenile-offender registrants are informed
by the juvenile court of their duty to comply with registration statutes:
[E]ach person who is adjudicated a delinquent child for committing
a sexually oriented offense or a child-victim oriented offense and
who is classified a juvenile offender registrant based on that
adjudication shall be provided notice in accordance with this section
of the offender’s or delinquent child’s duties imposed under sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code and
14
January Term, 2020
of the offender’s duties to similarly register, provide notice of a
change, and verify addresses in another state if the offender resides,
is temporarily domiciled, attends a school or institution of higher
education, or is employed in a state other than this state.
R.C. 2950.03(A). Here, Buttery received notice of his duty to register, and he and
a guardian signed a form attesting to his knowledge of his responsibilities.
Therefore, Buttery had notice of his duty to register as well as opportunities to
relieve himself of that duty; this was not an instance of a juvenile adjudication
having an unknown future sentence-enhancing effect on an offense committed later
in life, as in Hand.
{¶ 30} Buttery points to a difference in this case from Carnes. We noted in
Carnes that “[r]egardless of the predicate conduct, a violation of [the weapon-
under-disability statute] is a third-degree felony * * *.” Carnes, 154 Ohio St.3d
527, 2018-Ohio-3256, 116 N.E.3d 138, at ¶ 19. In contrast, if a person violates the
duty to register under R.C. 2950.04, the degree of the offense is determined by the
level of the sexually oriented offense in the underlying adjudication. See R.C.
2950.99(A) and (B). Therefore, because Buttery was adjudicated delinquent based
on what would have been a fourth-degree felony offense if committed by an adult,
his failure to register is a fourth-degree felony. R.C. 2950.99(A)(1)(a)(ii). Buttery
asserts that in this way, the juvenile adjudication determines the penalty for failure
to register, whereas any violation of the weapons-under-disability statute is a third-
degree felony, regardless of the underlying disability. But our point in Carnes was
that the juvenile adjudication did not operate as a sentence enhancement for an
unrelated crime committed as an adult, as had been the case in Hand.
{¶ 31} Nor is the juvenile adjudication a sentence enhancement in this case.
“The General Assembly is vested with the power to define, classify, and prescribe
punishment for offenses committed in Ohio.” State v. Taylor, 138 Ohio St.3d 194,
15
SUPREME COURT OF OHIO
2014-Ohio-460, 5 N.E.3d 612, ¶ 12. Unlike the sentencing statutes in Apprendi
and Alleyne, R.C. 2950.99 does not provide for sentence enhancements upon a trial
court’s determination of certain facts. The applicable felony level here is tied to
the adjudication that led to the duty to register. We held in Hand that “[b]ecause a
juvenile adjudication is not established through a procedure that provides the right
to a jury trial, it cannot be used to increase a sentence beyond a statutory maximum
or mandatory minimum.” Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d
448, at ¶ 34. The statutory scheme at issue in this case does not increase a sentence
beyond a statutory maximum or mandatory minimum. The General Assembly has
simply determined what the penalty is for the failure to register for a person
previously adjudicated delinquent for committing what would be a fourth-degree
felony if committed by an adult, and the trial court properly imposed that
punishment on Buttery.
CONCLUSION
{¶ 32} In this case, R.C. 2950.04 does not equate juvenile adjudications
with criminal convictions. R.C. 2950.04 requires both adults convicted of sexual
offenses and juveniles adjudicated delinquent for sexually oriented offenses and
classified as juvenile-offender registrants to register as sex offenders. The duty to
register does not automatically arise after a juvenile adjudication; for juveniles like
the defendant in this case, the duty to register is the product of a hearing conducted
by the juvenile court. Therefore, the elements of a violation of R.C. 2950.04 for a
defendant like Buttery are the existence of a court order and a violation of that
order. Juveniles adjudicated delinquent are not forced to register as sex offenders
because their adjudications are considered reliable, but because the General
Assembly has determined that juveniles adjudicated delinquent are among those
people who must register in order to protect the public. As in Carnes, it is the
existence of the adjudication rather than its reliability that is at issue in the statute.
Finally, juveniles have notice of their duty to register and have multiple
16
January Term, 2020
opportunities to lift their duty to register through a judicial process, adding layers
of due process that were not available for the defendants in Hand. For these
reasons, we hold that the conviction of Buttery for a violation of R.C. 2950.04 that
arose from a juvenile adjudication did not violate Buttery’s rights to a jury or to due
process under the Ohio Constitution and United States Constitution. We therefore
affirm the judgment of the court of appeals.
Judgment affirmed.
FRENCH, GALLAGHER, DEWINE, and STEWART, JJ., concur.
O’CONNOR, C.J., concurs in judgment only, with an opinion.
DONNELLY, J., dissents, with an opinion.
EILEEN A. GALLAGHER, J., of the Eighth District Court of Appeals, sitting
for FISCHER, J.
_________________
O’CONNOR, C.J., concurring in judgment only.
{¶ 33} I agree with the majority’s decision to affirm the court of appeals’
judgment. I write separately, however, because I do not agree with the majority
that this case and State v. Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d
138, share key elements.
{¶ 34} I find this case to be wholly distinguishable from Carnes and State
v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, because appellant
Robert Buttery’s conviction for failure to register was based on his obligation to do
so as a Tier I sex offender. Importantly, Buttery continued to have an obligation to
register past the age of 18. We have already held that the duty to register may
continue past age 18. See In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54
N.E.3d 1184, paragraph one of the syllabus (“The imposition of juvenile-offender-
registrant status under R.C. 2152.82 or 2152.83(B) with corresponding registration
and notification requirements that continue beyond the offender’s reaching age 18
17
SUPREME COURT OF OHIO
or 21 does not violate the offender’s due-process rights”). This is, therefore, not a
case in which the law has reached back in time to use a prior juvenile adjudication
to enhance an adult sentence or satisfy an element of a crime committed as an adult.
Instead, Buttery was convicted after he failed to comply with an obligation that
applied to him as an adult—his duty to register under R.C. 2950.04. See Carnes at
¶ 41 (O’Connor, C.J., dissenting) (“Punishing an adult defendant because of a
juvenile adjudication is fundamentally different from punishing an adult defendant
for behavior exhibited as an adult”).
{¶ 35} In many ways, Buttery’s arguments are essentially a challenge to his
offender classification. But he did not challenge that classification in 2012 when,
after a hearing, he was classified as a juvenile-offender registrant and Tier I sex
offender or in 2015 when the court confirmed his Tier 1 status after he had
completed residential treatment. Thus, Buttery’s attempt to frame the challenge to
his conviction as being similar to the issue presented in Hand, and the majority’s
comparison of the case to Carnes, is unavailing. Accordingly, I concur in judgment
only.
_________________
DONNELLY, J., dissenting.
{¶ 36} I find several aspects of this case troubling. First, appellant, Robert
Buttery, did not raise a due-process argument in the trial court. Accordingly, the
due-process argument was waived and need not have been addressed by the First
District Court of Appeals. See In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286(1988), syllabus (even when waiver of a constitutional issue is clear, “this court
reserves the right to consider constitutional challenges to the application of statutes
in specific cases of plain error or where the rights and interests involved may
warrant it”).
18
January Term, 2020
{¶ 37} Second, Buttery has not asked the juvenile court to relieve him of his
statutory duty to register. It is not clear why Buttery did not request relief from this
severe collateral consequence when the legislature has provided him with a
statutory procedure to do so. See R.C. 2950.15 (allowing for the termination of the
registration requirement upon motion).
{¶ 38} Third, certain alleged procedural errors or defects are the subject of
other appeals, preventing us from addressing the entire case. See, e.g., State v.
Buttery, 1st Dist. C-170141, 2018-Ohio-2651. (One example is whether Buttery
received a timely completion-of-disposition hearing. See In re R.B., Supreme Court
case No. 2019-1325.)
{¶ 39} Fourth, we have no idea whether Buttery was afforded due process
in the juvenile court when his delinquency was established at his adjudication
hearing. It would be nice to review that court’s transcript, but it was not part of the
record—though it probably should be—and we have not asked for it. It is easy to
imagine that Buttery was not made fully aware of the collateral consequences of
his admission to the allegations against him. In the absence of the transcript, all we
can do is speculate. I would remand this matter to the court of appeals with
instructions that it obtain and review the transcript.
{¶ 40} Finally, I have grave concerns about whether constitutional due-
process requirements were met in Buttery’s juvenile proceeding. What constitutes
due process in a juvenile setting is inexact, but the “overarching concern” is
“fundamental fairness.” State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901
N.E.2d 209, ¶ 51-52.
{¶ 41} Buttery was adjudicated delinquent in a civil system that is designed
to rehabilitate offenders, not punish them. State v. Hand, 149 Ohio St.3d 94, 2016-
Ohio-5504, 73 N.E.3d 448, ¶ 14; In re Caldwell, 76 Ohio St.3d 156, 157-158, 666
N.E.2d 1367 (1996). In contrast, R.C. 2950.04, which requires Buttery to register
as a sexual offender, is part of the criminal code and is punitive. In re D.S., 146
19
SUPREME COURT OF OHIO
Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1183, ¶ 50 (Lanzinger, J., dissenting)
(“the registration process imposed on sex offenders in Ohio is punitive”), citing
State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16.
{¶ 42} Our juvenile-court system is designed to keep juvenile proceedings
out of the public eye to prevent a lifetime of stigma for acts committed as a juvenile.
Buttery has not committed any offense as an adult similar to the acts at issue in his
juvenile proceeding. But the successful efforts he undertook to rehabilitate himself
have now been undermined: his acts are now in the public eye.
{¶ 43} This case does not involve a juvenile adjudication that was used to
enhance “the degree of or the sentence for a subsequent offense committed as an
adult,” which we have held is a patent violation of due process, State v. Hand, 149
Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, paragraph one of the syllabus and
¶ 36. This case is worse. Here, Buttery’s juvenile adjudication is the sine qua non
of his conviction for failure to register. Buttery’s juvenile adjudication, in a civil
proceeding, was not used to increase the severity of his penalty for a subsequent
offense, it is the thing without which there would not have been the subsequent
offense.
{¶ 44} Buttery is being punished as an adult based on acts he committed as
a juvenile. This is fundamentally unfair. Moreover, the degree of his punishment
is based on the degree of the felony that Buttery would have been charged with if
he had committed the acts as an adult—even though he was not convicted of a
felony and he did not have a right to a jury trial because he was a juvenile at the
time of the acts. This is also fundamentally unfair.
{¶ 45} Buttery has not received due process. I dissent.
_________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula
Adams, Assistant Prosecuting Attorney, for appellee.
20
January Term, 2020
Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs
Nessler and Joshua A. Thompson, Assistant Public Defenders, for appellant.
Rickell Howard Smith, urging reversal for amicus curiae Children’s Law
Center, Inc.
Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant
Public Defender, urging reversal for amicus curiae Office of the Public Defender.
_________________
21