DocketNumber: No. CA2007-11-027.
Citation Numbers: 2009 Ohio 11
Judges: YOUNG, J.
Filed Date: 1/5/2009
Status: Precedential
Modified Date: 4/17/2021
{¶ 2} On February 28, 2005, appellant, then 16 years old, was charged with raping a *Page 2
nine-year-old child in violation of R.C.
{¶ 3} On October 22, 2007, the juvenile court held a hearing to review both appellant's sex offender classification and the recommendation that appellant be released from the custody of DYS. During the hearing, the juvenile court adopted the recommendation that appellant be released from DYS and reaffirmed its prior findings and order that appellant register as a juvenile sexual offender registrant. The juvenile court also advised appellant that effective January 1, 2008, he would be classified as a Tier III Sex Offender under Senate Bill 10, and summarized appellant's future registration requirements under that legislation. By entry filed on October 26, 2007, the juvenile court released appellant from DYS, ordered appellant to register as a juvenile sexual offender registrant, and ordered that his "obligations to register as a Tier III offender as prescribed by Senate Bill 10 and as discussed on the record * * * are affirmed."
{¶ 4} Appellant now appeals the juvenile court's decision classifying him as a Tier III Sex Offender, raising seven assignments of error.1 Because appellant's second, and fourth through seventh assignments of error challenge the constitutionality of Senate Bill 10, they will be addressed together. *Page 3
{¶ 5} Assignment of Error No. 3:
{¶ 6} "THE PREBLE COUNTY JUVENILE COURT ERRED WHEN IT CLASSIFIED S.R.P. AS A TIER III JUVENILE SEXUAL OFFENDER REGISTRANT BECAUSE AS OF JULY 1, 2007, THERE EXISTED NO STATUTORY AUTHORITY TO CONDUCT A JUVENILE SEX OFFENDER CLASSIFICATION HEARING."
{¶ 7} Appellant argues that the juvenile court did not have statutory authority to conduct a juvenile sex offender classification hearing or to classify him as a Tier III Sex Offender after July 1, 2007, because there was no sex offender statute in effect at that time as Senate Bill 10 had repealed the old version of the sex offender statutes before enacting the new versions. Specifically, appellant asserts that the former versions of R.C.
{¶ 8} Section 2 of Senate Bill 10 provides, in relevant part, that "existing sections * * *
{¶ 9} Appellant's argument was rejected by three appellate district courts, albeit on *Page 4
different grounds. In In re Smith, Allen App. No. 1-07-58,
{¶ 10} "Therefore, all of the Ohio Revised Code portions repealed in Section 2 were repealed effective January 1, 2008, the same date that the new laws, as articulated in Section 1, became effective. The plain statutory language must control." Id. at ¶ 22-23.
{¶ 11} In In re Marcio, Licking App. No. 2007 CA 00149,
{¶ 12} "`Where an act of the General Assembly amends an existing section of the Revised Code * * * postpones the effective date of the amended section for [a time] after the effective date of the act, 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
{¶ 13} In In re E.L., Cuyahoga App. No. 90848,
{¶ 14} "An example illustrates the absurd result of appellant's argument. According to appellant's logic, R.C.
{¶ 15} Subsequently, after discussing the reasoning in In reSmith, the Eighth Appellate District "respectfully decline[d] to adopt the Third District's reasoning and instead hold that Section 4 of S.B. 10 creates ambiguity regarding the effective dates of the old versus the new laws. In conclusion, to 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 *Page 6 over delinquent minors remained uninterrupted." In re E.L. at ¶ 11.
{¶ 16} Notwithstanding appellant's argument to the contrary, we agree with the Eighth Appellate District that Section 4 creates ambiguity regarding the effective date of the numerous sections of the Revised Code repealed or amended by Senate Bill 10, and likewise respectfully decline to adopt the Third Appellate District's reasoning in In reSmith. Section 5 of Senate Bill 10 states in relevant part that:
{¶ 17} "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."
{¶ 18} Given the strong language in Section 5 and the background of Senate Bill 10, we too cannot conclude that in enacting Senate Bill 10, the legislature intended to leave a six-month hiatus or gap between July 1, 2007 and January 1, 2008 for the numerous sections of the Revised Code affected by Senate Bill 10. If the legislature had so intended, it could have explicitly so provided. Therefore, in light of In reE.L. and the supreme court's 1981 decision in Cox, we find that the juvenile court had statutory authority between July 1, 2007 and January 1, 2008 to conduct the juvenile sex offender classification hearing and to classify appellant as a Tier III Sex Offender. Appellant's third assignment of error is overruled.
{¶ 19} Assignment of Error No. 2:
{¶ 20} "THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO S.R.P., AS THE APPLICATION OF SENATE BILL 10 TO S.R.P. VIOLATES HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE
UNITED STATES CONSTITUTION AND SECTION
{¶ 21} Assignment of Error No. 4:
{¶ 22} "THE RETROACTIVE APPLICATION OF SENATE BILL 10 VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF SECTION
{¶ 23} Assignment of Error No. 5:
{¶ 24} "THE RETROACTIVE APPLICATION OF SENATE BILL 10 VIOLATES THE SEPARATION OF POWERS DOCTRINE THAT IS INHERENT IN OHIO'S CONSTITUTION."
{¶ 25} Assignment of Error No. 6:
{¶ 26} "THE APPLICATION OF SENATE BILL 10 VIOLATES THE UNITED STATE'S [SIC] CONSTITUTION'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS.
{¶ 27} Assignment of Error No. 7:
{¶ 28} "THE RETROACTIVE APPLICATION OF SENATE BILL 10 VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF SECTION
{¶ 29} In the foregoing five assignments of error, appellant argues that the application of Senate Bill 10 violates (1) his due process rights; (2) the Ex Post Facto Clause of the United States Constitution and the Ohio's Constitution's prohibition on retroactive laws; (3) the separation of powers doctrine; (4) the prohibition against cruel and unusual punishment; and (5) the Double Jeopardy Clause of the United States Constitution. The record indicates that *Page 8
appellant never raised his constitutional arguments in the juvenile court. Failure to raise at the trial court level the constitutionality of a statute or its application constitutes a waiver and therefore need not be heard for the first time on appeal. State v. Awan (1986),
{¶ 30} Appellant argues that Senate Bill 10 violates the Ex Post Facto Clause, the Ohio's Constitution's prohibition on retroactive laws, the separation of powers doctrine, the prohibition against cruel and unusual punishment, and the Double Jeopardy Clause. These arguments were rejected in our recent decision in Williams in which we found that Senate Bill 10 does not violate the Ex Post Facto Clause, the Ohio's Constitution's prohibition on retroactive laws, the separation of powers doctrine, the prohibition against cruel and unusual punishment, or the Double Jeopardy Clause. Williams at ¶ 36, 75, 102, 106, and 111. See, also, In re A.R. at ¶ 34; In re G.E.S., Summit App. No. 24079,
{¶ 31} Appellant also argues that Senate Bill 10 violates his due process rights because it is criminal in nature and punitive in effect; imposes burdens that operate as affirmative disabilities and restraints; is analogous to colonial and/or shaming punishments; furthers the traditional aims of punishment: retribution and deterrence; and treats juvenile and adult sex offenders alike.3 Again, four of these arguments were rejected in Williams in which *Page 9
we found that Senate Bill 10 is not criminal in nature or punitive in effect; does not impose affirmative disabilities or restraints; is not analogous to colonial and/or shaming punishments; and does not further the traditional aims of punishment. Williams,
{¶ 32} As to the argument that Senate Bill 10 violates due process rights because it treats juvenile and adult sex offenders alike, we disagree. While it is apparent the legislature views juvenile sex offenders as an equal threat society needs to be protected against, "the provisions of Ohio's sexual offender registration statutes contain different provisions for juveniles than adult offenders." In reGant, Allen App. No. 1-08-11,
{¶ 33} Appellant's second assignment of error is accordingly overruled.
{¶ 34} Assignment of Error No. 8:
{¶ 35} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THAT S.R.P.'S CLASSIFICATION AS A TIER III JUVENILE SEX OFFENDER REGISTRANT WAS MANDATORY, IN VIOLATION OF R.C.
{¶ 36} Appellant argues that while the classification of adult sex offenders is solely offense-based under Senate Bill 10, the same is not true for juvenile sex offenders as illustrated by R.C.
{¶ 37} At the outset, we note that the parties disagree as to whether the juvenile court classified appellant as a Tier III Sex Offender. Appellant argues that he was so classified, whereas the state argues appellant was simply advised as to "what would conceivably happen as of January 1, 2008, based upon his adjudicated offense and the effective date of [Senate Bill 10]," and that as a result, his challenge is premature.
{¶ 38} It is well-established that a trial court speaks through its journal rather than by oral pronouncement. See In re R.P., Summit App. No. 23967,
{¶ 39} "IT IS THE FURTHER ORDER OF THE COURT that the child/adult *Page 11 respondent's obligations to register as a juvenile sexual offender registrant, as outlined in dispositional hearing held in July 2006 and reiterated this day, are hereby affirmed. IT IS THE FURTHER ORDER OF THECOURT that the child/adult respondent's obligations to register as aTier III offender as prescribed by Senate Bill 10 and as discussed onthe record with the child/adult respondent today are affirmed. * * *
{¶ 40} "IT IS THE FURTHER ORDER OF THE COURT that the child/adult respondent is hereby advised of the right to appeal the reclassificationregistration requirements imposed by Senate Bill 10 and ordered by thisCourt, as the Court specifically finds same to constitute a final appealable order, and that the child/adult respondent shall file said notice of appeal within 30 days accordingly." (Emphasis added.)
{¶ 41} Because the juvenile court classified appellant as a Tier III Sex Offender under Senate Bill 10, it follows that his challenge regarding the juvenile court's failure to use its discretion is not premature (nor is his constitutional challenge to Senate Bill 10). We now turn to appellant's argument.
{¶ 42} R.C.
{¶ 43} In In re G.E.S.,
{¶ 44} In In re A.R.,
{¶ 45} In light of our decision in In re A.R., we find that the juvenile court was not required to classify appellant as a Tier III Sex Offender under Senate Bill 10 based solely on his prior adjudication for rape. Thus, the juvenile court erred when it failed to use its discretion in classifying appellant under Senate Bill 10. Accordingly, we reverse the juvenile court's decision classifying appellant as a Tier III Sex Offender and remand the matter for the juvenile court to conduct a new juvenile sex offender classification hearing and to use its full discretion when classifying appellant under Senate Bill 10 and in accordance with the laws of this state. Appellant's eighth assignment of error is well-taken and sustained.
{¶ 46} We further reject appellant's argument that Senate Bill 10 violates his due process rights because it removed the juvenile court's discretion to determine a juvenile sex *Page 13 offender classification on a case-by-case basis. Appellant's second assignment of error in that regard is accordingly overruled.
{¶ 47} Judgment affirmed in part, reversed in part, and remanded.
WALSH, P.J., and BRESSLER, J., concur.
In Re Carr, 08 Ca 19 (10-30-2008) , 2008 Ohio 5689 ( 2008 )
In Re A.R., Ca2008-03-036 (12-15-2008) , 2008 Ohio 6566 ( 2008 )
State v. Williams, Ca2008-02-029 (12-1-2008) , 2008 Ohio 6195 ( 2008 )
In Re Smith, 1-07-58 (6-30-2008) , 2008 Ohio 3234 ( 2008 )
Middletown v. McIntosh, Ca 2006-06-147 (4-23-2007) , 2007 Ohio 1892 ( 2007 )
In Matter of Gant, 1-08-11 (10-6-2008) , 2008 Ohio 5198 ( 2008 )
In Matter of Marcio A., 2007 Ca 00149 (9-4-2008) , 2008 Ohio 4523 ( 2008 )