In re A.W.

[Cite as In re A.W., 2015-Ohio-3463.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: A.W., A MINOR CHILD : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 15CA3
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Juvenile Division, Case
Nos. 212-1387 & 213-1207
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 24, 2015
APPEARANCES:
For Appellee For Appellant
CHARLES MCCONVILLE CHARLYN BOHLAND
Knox County Prosecuting Attorney Assistant Public Defender
117 East High Street 250 East Broad Street
Suite 234 Suite 1400
Mount Vernon, OH 43050 Columbus, OH 43215
[Cite as In re A.W., 2015-Ohio-3463.]
Gwin, P.J.
{¶1} Appellant A.W. appeals the February 3, 2015 judgment entry of the Knox
County Common Pleas Court, Juvenile Division, overruling his objections to his
classification as a Tier I juvenile offender registrant based upon Due Process, Double
Jeopardy, and Equal Protection. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On December 6, 2012, a complaint was filed against appellant, A.W., a
juvenile, age sixteen, alleging he was a delinquent child for committing two counts of
rape in violation of R.C. 2907.02 and one count of violating the liquor-control law in
violation of R.C. 4301.69. The charges arose from an incident involving appellant and a
sixteen year old girl, M.S.
{¶3} Appellant raised the issue of his competency on January 10, 2013. The
trial court ordered a competency evaluation on January 15, 2013. The evaluation was
performed on January 29, 2013, and a report was filed on February 11, 2013.
{¶4} On June 7, 2013, a second complaint was filed against appellant, alleging
he was a delinquent child for committing two counts of gross sexual imposition in
violation of R.C. 2907.05 and one count of tampering with evidence in violation of R.C.
2921.12. These charges arose from the same incident involving M.S.
{¶5} A trial commenced on June 24, 2013. The trial court adjudicated appellant
delinquent of one of the rape counts, the liquor-control law violation, one of the gross
sexual imposition counts, and the tampering count. The trial court dismissed the
forcible rape and forcible gross sexual imposition counts. By journal entry filed on July
10, 2013, the trial court committed appellant to the Ohio Department of Youth Services
Knox County, Case No. 15CA3 3
for a minimum aggregate term of one year to a maximum term until his twenty-first
birthday. The trial court further "continued disposition as to sexual offender registration
requirements until [A.W.'s] first parole hearing following his release form [sic] the
Department of Youth Services. [A.W.] should have no expectation that he will not be
given a registration requirement."
{¶6} Appellant filed an appeal. On April 14, 2014, this Court found that the trial
court erred in failing to hold a hearing and issue a written determination as to
competency under R.C. 2152.58, found the remaining assignments of error moot, and
reversed and remanded to the trial court to conduct a competency hearing and issue a
written determination as to competency. In re Andrew W., 5th Dist. Knox No. 13-CA-24,
2014-Ohio-1576. On June 23, 2014, appellee filed a Motion to Schedule Juvenile
Offender Registrant Tier Classification Hearing. Appellant was released and discharged
from the Department of Youth Services on July 6, 2014. After appellant filed a motion
for reconsideration, this Court, on July 14, 2014, vacated the reversal of appellant's
delinquency adjudication and remanded the case for a determination on competency.
{¶7} The trial court held the hearing on competency and, by journal entry filed
September 3, 2014, found appellant had been competent to stand trial. No appeal was
taken from the decision regarding appellant's competence. On October 30, 2014, this
Court reopened the case to address appellant's remaining assignments of error,
including whether the findings were against the sufficiency of the evidence, whether
appellant's prosecution violated his right to due process, and whether appellant was
denied the effective assistance of counsel. In In re Andrew W., 5th Dist. Knox No. 13-
Knox County, Case No. 15CA3 4
CA-24, 2014-Ohio-4952, we denied appellant's remaining assignments of error and
affirmed the judgment of the Knox County Court of Common Pleas, Juvenile Division.
{¶8} On November 7, 2014, appellee filed a Renewed Motion to Schedule
Juvenile Offender Registrant Tier Classification Hearing. Appellant filed his
memorandum in opposition on November 21, 2014. The trial court held a hearing on
January 27, 2015. Appellant's counsel made arguments regarding Due Process,
Double Jeopardy, and Equal Protection. The trial court denied appellant's objections.
Subsequently, appellant and appellee stipulated to a Tier I juvenile offender registrant
classification with the duty to register annually for ten years with no requirement for
community notification. On February 3, 2015, the trial court journalized its rulings.
{¶9} Appellant appeals the February 3, 2015 judgment entry of the Knox
County Common Pleas Court, Juvenile Division, and assigns the following as error:
{¶10} "I. THE JUVENILE COURT VIOLATED A.W.'S RIGHT TO DOUBLE
JEOPARDY PROTECTIONS WHEN IT IMPOSED MULTIPLE PUNISHMENTS FOR
THE SAME OFFENSE, IN VIOLATION OF STATE V. RABER, 134 OHIO ST.3D 350,
2012-OHIO-5636, 982 N.E.2D 684; FIFTH AND FOURTEENTH AMENDMENTS TO
THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION.
{¶11} "II. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED A.W. AS A
TIER I JUVENILE OFFENDER REGISTRANT BECAUSE THE CLASSIFICATION
PERIOD EXTENDS BEYOND THE AGE JURISDICTION OF THE JUVENILE COURT,
IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION; AND, ARTICLE I, SECTIONS 9 AND 16, OHIO CONSTITUTION.
Knox County, Case No. 15CA3 5
{¶12} "III. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED A.W. AS A
JUVENILE OFFENDER REGISTRANT BECAUSE A.W.'S STATUS AS A
MANDATORY REGISTRANT UNDER R.C. 2152.83(A) VIOLATES THE EQUAL
PROTECTION CLAUSES OF THE U.S. AND OHIO CONSTITUTIONS."
I.
{¶13} Appellant first argues that classifying appellant, a juvenile, at any other
time than at disposition violates double jeopardy by imposing multiple criminal
punishments for the same offense in successive proceedings. Appellant argues that
since the juvenile court held a disposition hearing and committed him to ODYS on July
10, 2013 and subsequently classified him at a juvenile offender registrant hearing on
February 4, 2015, the juvenile court violated his right to double jeopardy protections.
A.W. relies primarily on State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982
N.E.2d 684, in which the Ohio Supreme Court held that the trial court lacked authority to
re-open sentencing to classify the defendant as a sex offender more than one year after
it imposed its original sentences.
{¶14} This Court has previously addressed appellant’s argument and has held
that the operation of R.C. 2152.83 provides for the classification of juvenile sexual
offender registrants after an offender’s release from a secure facility such as ODYS, as
this is not a new proceeding, but a continuation of the original delinquency case. In re
D.R., 5th Dist. Knox No. 13CA27, 2014-Ohio-588; In re D.S., 5th Dist. Licking No. 13-
CA-58. 2014-Ohio-867. As noted previously by this Court, Raber is factually and
procedurally distinguishable from the case at hand. Id. Raber was classified pursuant
to R.C. 2950.01(B)(2) as an adult sexual offender. The same statute is not applicable to
Knox County, Case No. 15CA3 6
appellant, a juvenile offender. Rather, in this case, the court’s ability to classify A.W.
arose from the clause of R.C. 2152.83 granting the court jurisdiction to issue an order
classifying A.W. as part of the dispositional order. Here, A.W. had not attained the age
of twenty-one at the time of the classification and was therefore still subject to the
jurisdiction of the juvenile court. Id.{¶15} As we noted in D.R., “the classification process [is] not a new proceeding
but rather a continuation of the original delinquency case” and thus “multiple
punishments have not been imposed.” 5th Dist. Knox No. 13CA27, 2014-Ohio-588.
Further, in D.S., we stated that “whether appellant was ‘subject to registration’ was an
issue properly to be determined during the trial court’s hearing on
registration/classification. It was not an issue that needed to be determined at his
original disposition because of his commitment to a secure facility.” 5th Dist. Licking
No. 13-CA-58. 2014-Ohio-867.
{¶16} In this case, appellant was committed to ODYS for a period of one year or
until his twenty-first birthday on the offense of rape. The trial court, “continued
disposition as to sexual offender registration requirements until [A.W.'s] first parole
hearing following his release form [sic] the Department of Youth Services. [A.W.]
should have no expectation that he will not be given a registration requirement." In
accordance with our holdings in D.R. and D.S., appellant’s first assignment of error is
overruled.
II.
{¶17} Appellant next contends that the imposition of a classification period
extending beyond his twenty-first birthday and the age jurisdiction of the juvenile court
Knox County, Case No. 15CA3 7
violates his right to due process and is cruel 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.
{¶18} 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
re D.S., 5th Dist. Licking No. 13-CA-58. 2014-Ohio-867. 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.
{¶19} 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
Knox County, Case No. 15CA3 8
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.{¶20} As in D.R. and M.R., 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-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).
{¶21} Appellant’s second assignment of error is overruled.
III.
{¶22} Appellant argues 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.
Knox County, Case No. 15CA3 9
{¶23} 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 is excluded and is not a suspect class. Adamsky v. Buckeye Local School Dist., 73
Ohio St. 360, 653 N.E.2d 212 (1995).
{¶24} 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).
{¶25} 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.
{¶26} 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
Knox County, Case No. 15CA3 10
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.
{¶27} 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
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.{¶28} 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
Knox County, Case No. 15CA3 11
court discretion in determining whether a sex offender classification is needed when the
offender is younger.” Id.{¶29} In accordance with our decision in D.R. and the decisions from other
appellate districts, we find that the statute is rationally related to a legitimate
government interest. Appellant’s third assignment of error is overruled.
{¶30} Based upon the foregoing, appellant’s assignments of error are overruled.
The February 3, 2015 judgment entry of the Knox County Court of Common Pleas,
Juvenile Division, is affirmed.
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur