DocketNumber: Nos. 24130 and 24131.
Citation Numbers: 2008 Ohio 6614
Judges: CARR, Presiding Judge.
Filed Date: 12/17/2008
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 3} On May 8, 2007, T.H. was brought before the juvenile court for a preliminary hearing on a probation violation pursuant to R.C.
{¶ 4} On August 9, 2007, complaints were filed against the juvenile, alleging one count of rape in violation of R.C.
{¶ 5} On November 20, 2007, the matter proceeded to adjudicatory hearing before the magistrate. On November 30, 2007, the juvenile court issued an order adjudicating T.H. delinquent by reason of the probation violation, rape and kidnapping. T.H. timely objected to the magistrate's decision adjudicating him delinquent. On January 14, 2008, the juvenile court overruled the objections and adjudicated T.H. delinquent by reason of kidnapping and rape.
{¶ 6} The matter proceeded to dispositional hearing on February 14, 2008. The juvenile court committed T.H. to DYS for a minimum term of six months, maximum to age twenty-one, *Page 3 for the probation violation and ordered that such commitment be served concurrently with the disposition in case number DL 07-08-3211, which involved the rape and kidnapping counts. In that case, the juvenile court ordered that T.H. be committed to DYS "for a minimum term of 12 Month(s) to a maximum term to age twenty-one (21) on Count 1 2907.02 F1 SEX OFFENSES-RAPE-\par Count 2 2905.01 F1 KIDNAPPING AND EXTORTION — KIDNAPPING-."1 The juvenile court, upon finding that T.H. had been adjudicated delinquent for having committed a sexually oriented offense and that he was sixteen years old at the time of the commission of the offense, further classified T.H. as a juvenile sex offender registrant and Tier III sex offender.
{¶ 7} T.H. timely appealed, setting forth five assignments of error for review. This Court considers some assignments of error out of order, and consolidates others, to facilitate review. At oral argument, both T.H. and the State stipulated to a remand of this matter to the juvenile court based on that court's erroneous finding in relation to his classification that T.H. was sixteen years old at the time of the commission of the rape and kidnapping. Because T.H. also challenges the juvenile court's jurisdiction to have adjudicated T.H. delinquent, this Court is compelled to address that threshold issue prior to addressing the remaining issues.
"THE SUMMIT COUNTY JUVENILE COURT ERRED WHEN IT ADJUDICATED T.H. TO BE A DELINQUENT CHILD IN NOVEMBER 2007 BECAUSE AS OF JULY 1, 2007, THERE EXISTED NO STATUTORY AUTHORITY TO CONDUCT SUCH A HEARING OR MAKE SUCH AN ORDER."*Page 4
{¶ 8} T.H. argues that (Amended Substitute) Senate Bill 10 (of the 127th General Assembly) ("Senate Bill 10") by its plain language divested the juvenile court of jurisdiction from July 1, 2007, until January 1, 2008. Specifically, T.H. argues that the prior versions of R.C.
{¶ 9} Senate Bill 10, states, in relevant part:
*Page 5"AN ACT
"To amend sections ***
2151.23 , ***, 2152.02; ***; and to repeal [enumerated sections] of the Revised Code to revise Ohio's Sex Offender Registration and Notification Law and conform it to recently enacted requirements of federal law contained in the Adam Walsh Child Protection and Safety Act of 2006, to increase the penalties for certain violations of kidnapping, aggravated murder when a sentence of death of life without parole is not imposed, and murder when the victim of any of those offenses is less than 13 years of age and the offense was committed with a sexual motivation and require that those sentences be served under the Sexually Violent Predator Sentencing Law, and to declare an emergency."***
"SECTION 1. That sections ***
2151.23 , ***, 2152.02, *** be amended *** as follows:"***
"SECTION 2. That existing sections ***
2151.23 , ***, 2152.02, *** are hereby repealed."SECTION 3. The amendments to sections ***
2151.23 , ***, 2152.02, *** that are made by Sections 1 and 2 of this act, *** shall take effect on January 1, 2008.***
"SECTION 4. Sections 1 to 3 of this act shall take effect on July 1, 2007."
"SECTION 5. This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reason for such necessity is that the changes to the state's Sex Offender Registration and Notification Law made by this act are crucially needed to provide increased protection and security for the state's residents from persons who have been convicted of, or found to be delinquent children for committing, a sexually oriented offense or a child-victim oriented offense and to conform that Law by July 1, 2007, to recently enacted requirements of federal law. Therefore this act shall take immediate effect."
{¶ 10} This is an issue of first impression in this appellate district. While other districts have addressed it in various ways, all have held that some version of the enumerated statutory provisions was in effect from July 1, 2007, until January 1, 2008.
{¶ 11} The Third District Court of Appeals first addressed the issue in In re Smith, 3d Dist. No. 1-07-58,
{¶ 12} The Eighth District Court of Appeals later addressed the issue in In re E.L., 8th Dist. No. 90848,
"The General Assembly will not be presumed to have intended to enact a law producing unreasonable or absurd consequences. It is the duty of the courts, if the language of a statute fairly permits or unless restrained by the clear language thereof, so to construe the statute as to avoid such a result." Canton v. Imperial Bowling Lanes, Inc. (1968),
16 Ohio St. 2d 47 , paragraph four of the syllabus.
The Eighth District then concluded:
"[T]o avoid an unreasonable result, we must rely on legislative intent and read S.B. 10 to mean that the ``repealed' and ``amended' portions of the numerous statutes affected registration, notification, etc., of classified sex offenders. The legislation had no intention to repeal or amend the substantive elements of offenses such as rape or kidnapping, or the court's authority to oversee the criminal justice system. The juvenile court's jurisdiction over delinquent minors remained uninterrupted[.]" In re E.L. at ¶ 11.
{¶ 13} The Fifth District Court of Appeals then addressed the issue inIn re Carr, 5th Dist. No. 08 CA 19,
*Page 7"Where the provisions of a revising statute are to take effect at a future period, and the statute contains a clause repealing the former statute upon the same subject, the repealing clause does not take effect until the other provisions of the repealing act come into operation.
"Modern commentators have endorsed the proposition that a repealer and the amendatory enactment take effect simultaneously unless the legislature expresses a contrary intention. The power to enact laws includes the power to fix a future day on which the act will take effect. A statute with a definite future day fixed for its commencement has effect only from that time. A repealing clause of a statute which is to take effect in the future will not be effective until the statute itself is in operation.
"***
"Where an act of the General Assembly amends an existing section of the Revised Code ***, postpones the effective date of the amended section ***, and repeals the existing section in a standard form of repealing clause used for many years by the General Assembly for the purpose of complying with Section
15 (D) of ArticleII of the Constitution of Ohio, the constitutionally mandated repealing clause must be construed to take effect upon the effective date of the amended section in order to prevent a hiatus in statutory law, during which neither the repealed section nor the amended section is in effect. ***"To hold otherwise would render the legislative directive expressed *** a nullity." (Internal citations and quotations omitted.) Id. at 507-508.
{¶ 14} This Court agrees with our sister districts that there was no void in the law created by Senate Bill 10. However, after thoughtful consideration, we reject the reasoning of the Third, Fifth and Eighth Districts to the extent that they analyze the issue from the perspectives of plain language and/or ambiguity. It is not as clear that the plain language of the act allows us to reach our ultimate conclusion. On the other hand, an ambiguity analysis necessarily implicates applying rules of statutory construction. Neither approach is applicable under these circumstances.
{¶ 15} Rather, as we did in Hall, supra, this Court notes the wisdom of the Ohio Supreme Court in the Cox decision. In that case, the high court created a rule of law to ipso facto prevent a void in the statutory law without the need to resort to construing the specific language of the act or legislative intent. In the absence of express language creating a hiatus in the statutory law, a legislative act presumptively maintains a statutory framework. Accordingly, on the authority *Page 8 of Cox, this Court holds that the juvenile court was not without statutory authority in November 2007 to conduct an adjudicatory hearing. T.H.'s second assignment of error is overruled.
"THE SUMMIT COUNTY JUVENILE COURT ERRED WHEN IT CLASSIFIED T.H. AS A JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT DETERMINATION UPON HIS RELEASE FROM A SECURE FACILITY, IN VIOLATION OF R.C.2152.83 (B)(1)."
{¶ 16} T.H. argues that the juvenile court erred by classifying him as a juvenile offender registrant at the time of disposition because of the juvenile court's belief that it was obligated to do so based on its finding that T.H. was sixteen years old at the time of the commission of the offenses.
{¶ 17} The record indicates that T.H. was born on August 6, 1991. The complaints alleged that he committed rape and kidnapping between July 10-13, 2007, at a time when he would have been fifteen years old. At oral argument, both T.H. and the State stipulated that this matter must be remanded to the juvenile court for a reconsideration and proper determination of T.H.'s age at the time of the commission of the offenses before the juvenile court proceeds with classification, if at all, pursuant to applicable law. Accordingly, this Court declines to address the substantive merits of this assignment of error and remands pursuant to the parties' stipulation.
"THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO T.H. AS THE APPLICATION OF SENATE BILL [10] TO [T.H] VIOLATES HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE*Page 9FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION16 , ARTICLEI OF THE OHIO CONSTITUTION."
"THE RETROACTIVE APPLICATION OF SENATE BILL 10 TO T.H. VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF SECTION28 , ARTICLEII OF THE OHIO CONSTITUTION."
"T.H. WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, SECTIONS10 AND16 , ARTICLEI OF THE OHIO CONSTITUTION."
{¶ 18} T.H. argues that the application of Senate Bill 10 to him in regard to classification as a sex offender registrant is unconstitutional. He further argues that he was denied his constitutional right to the effective assistance of counsel. Because T.H. stipulated to reversal and remand of this matter to the juvenile court pursuant to the arguments raised in his first assignment of error, this Court declines to address the third, fourth and fifth assignments of error, as they are now moot.
*Page 10Judgment affirmed in part, reversed in part, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed equally to both parties.
SLABY, J., WHITMORE, J., CONCUR