In re A.Y.

[Cite as In re A.Y., 2019-Ohio-2589.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: A.Y. :
:
: Appellate Case No. 28114
:
: Trial Court Case No. 2017-3762
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
:
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OPINION
Rendered on the 28th day of June, 2019.
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MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Appellee, Montgomery County Children Services
VICTORIA A. BADER, Atty. Reg. No. 0093505, Assistant State Public Defender, 250 East
Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Appellant, A.Y.
.............
TUCKER, J.
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{¶ 1} Defendant-appellant A.Y. appeals from a judgment of the Montgomery
County Court of Common Pleas, Juvenile Division, which accepted her no contest plea
to pandering sexually oriented material involving a minor and adjudicated her to be a
delinquent child. For the reasons that follow, we affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
{¶ 2} A.Y. is a minor who was born in 2004. In May 2017, when A.Y. was 12 years
old, Dayton Police became aware of a sexual assault complaint involving A.Y. and an 18-
year-old male with whom she had engaged in sexual intercourse. A short time later,
while on diversion for a previous adjudication as an unruly child, A.Y. ran away from
home. She was discovered in an abandoned home with two adult males with whom she
admitted to having sexual relations. Following an investigation, it was discovered that
A.Y. had numerous accounts on Facebook and that she had used these accounts to
initiate contact with adult males, including a 33-year-old married man who had requested
that she text him pictures of herself. Using her Facebook accounts, A.Y. transmitted
pictures of her breasts and vagina and a video showing her masturbating.
{¶ 3} In June 2017, A.Y. was charged with pandering sexually oriented material
involving a minor, in violation of R.C. 2907.322(A)(1), a felony of the second degree if
committed by an adult. In September 2017, A.Y. filed a motion to dismiss the pandering
charge, arguing that R.C. 2907.322(A)(1) is unconstitutional as applied to minors. The
motion was denied. In October 2017, A.Y. entered an admission to the charge.
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However, in November, she filed a motion to withdraw the admission. The court
permitted the withdrawal. That same month, A.Y. entered a plea of no contest to the
pandering charge. The magistrate adjudicated her delinquent; she was placed on
probation for one year and given a suspended commitment to the Department of Youth
Services (DYS) for a minimum term of one year up until her 21st birthday. A.Y. filed
timely objections, which were overruled by the juvenile court.
{¶ 4} A.Y. appeals.
II. Due Process and Equal Protection
{¶ 5} A.Y.’s first assignment of error states as follows:
THE MONTGOMERY COUNTY JUVENILE COURT ERRED IN NOT
FINDING R.C. 2907.322(A)(1) UNCONSTITUTIONAL AS APPLIED TO
A.Y. BECAUSE APPLICATION OF THIS STATUTE TO HER CASE
VIOLATES HER RIGHT TO DUE PROCESS AND EQUAL PROTECTION.
FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION, AND ARTICLE I, SECTION 10, OHIO CONSTITUTION.
{¶ 6} A.Y. contends that R.C. 2907.322(A)(1), as applied to minors, violates both
the due process and equal protection clauses of the United States and Ohio Constitutions.
Specifically, she contends that the statute is vague because it permits arbitrary and
discriminatory enforcement of the law by criminalizing conduct committed by a member
of the statute’s protected class, victimized minor children, thereby producing an absurd
result in this case. She further contends that the statute violates her right to equal
protection of the law because it criminalizes behavior that would not be criminal if done
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by an adult.
{¶ 7} An enactment of the Ohio General Assembly is presumed to be
constitutional. State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110,
¶ 12, citing State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas, 9 Ohio St.2d
159, 161, 224 N.E.2d 906 (1967). Before a court may declare a statute unconstitutional,
“it must appear beyond a reasonable doubt that the legislation and constitutional
provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St.
142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.
{¶ 8} R.C. 2907.322(A)(1) provides that “[n]o person, with knowledge of the
character of the material or performance involved, shall * * * [c]reate, record, photograph,
film, develop, reproduce, or publish any material that shows a minor or impaired person
participating or engaging in sexual activity, masturbation, or bestiality.”
{¶ 9} We begin with A.Y.’s claim that R.C. 2907.322(A)(1) is impermissibly vague.
The Ohio Supreme Court has recognized that “[a] statute can be impermissibly vague for
either of two independent reasons. First, if it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits. Second,
if it authorizes or even encourages arbitrary and discriminatory enforcement.” (Internal
citation omitted.) In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, ¶ 22,
citing Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). The
second reason has been identified by the United States Supreme Court as the more
important aspect of the vagueness doctrine. Id.{¶ 10} A.Y. does not claims that R.C. 2907.322(A)(1) is unclear or that it is difficult
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to understand.1 Instead, her focus is on the second safeguard. A.Y. argues that the
statute permits the State to prosecute her as an offender even though, as a minor, she is
in the class which the statute seeks to protect. To support this argument, A.Y. cites to
the holding in In re D.B., which involved a 12-year-old who was adjudicated a delinquent
child in connection with five counts of “statutory rape” under R.C. 2907.02(A)(1)(b) arising
from sexual conduct occurring with an 11-year-old. Id. at ¶ 13. This subsection of the
statute criminalizes what is known as statutory rape and holds the offender strictly liable
for any sexual conduct with persons under the age of 13. Id. The Supreme Court
reversed the adjudication. In so doing, the court stated that R.C. 2907.02(A)(1)(b) is
“unconstitutional as applied to a child under the age of 13 who engages in sexual conduct
with another child under 13.” Id. at syllabus. The court stated that “because the statute
authorizes and encourages arbitrary and discriminatory enforcement,” the statute is
unconstitutionally vague. Id. at ¶ 24. The court emphasized that “when two children
under the age of 13 engage in sexual conduct with each other, each child is both an
offender and a victim, and the distinction between those two terms breaks down.” Id.
The court also concluded that the application of R.C. 2907.02(A)(1)(b) violated the equal
protection clause because both children engaged in sexual conduct with a person under
the age of thirteen, but only D.B. was charged. Id. at ¶ 31-32.
{¶ 11} We find In re D.B. inapplicable here because, in that case, both of the
juveniles violated R.C. 2907.02(A)(1)(b) and both were victims under the terms of the
statute. Here, in contrast, A.Y.’s actions violated R.C. 2907.322(A)(1), but, based upon
1
A reading of the statute demonstrates that it sufficiently informs an ordinary person that
it applies to any person, minor or adult. It further describes with sufficient particularity
what a person must do to commit a violation.
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the statutory language, she was not also a victim. Thus, since A.Y. was the only actor
to have violated R.C. 2907.322(A)(1), we cannot conclude that the statute authorizes or
encourages arbitrary and discriminatory enforcement.
{¶ 12} A.Y. also contends that application of R.C. 2907.322(A)(1) to the facts of
this case creates an absurd result, which violates her due process rights. A.Y. argues
that, since she is both the “person” who created and published the photographs and the
video and the “minor” depicted by the photographs and the video that “a literal [statutory
interpretation] * * * create[s] an absurd result – by punishing a 12 year old as an offender
rather than a victim of sexual exploitation.” Though we may question the wisdom of
A.Y.’s adjudication, since this is a result produced by the unambiguous statutory
language, we cannot conclude that the result is unconstitutionally absurd. If this is not a
result the legislature sanctions, it is for that body to address. We cannot say that
enforcement of the statute as applied to juveniles results in arbitrary or discriminatory
enforcement. Thus, we conclude that A.Y. has not demonstrated that R.C.
2907.322(A)(1) is unconstitutionally vague or that its application in this case otherwise
violates A.Y.’s right to due process of law.
{¶ 13} We next examine whether the statute violates the right to equal protection.
The United States Constitution and the Ohio Constitution both forbid the making and
enforcing of laws that deny equal protection to those to whom they are made applicable.
Stated differently, “[s]o long as the laws are applicable to all persons under like
circumstances and do not subject individuals to an arbitrary exercise of power and
operate alike upon all persons similarly situated, it suffices the constitutional prohibition
against the denial of equal protection of the laws.” Conley v. Shearer, 64 Ohio St.3d
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284, 288-289, 595 N.E.2d 862 (1992).
{¶ 14} A.Y. argues that an adult can lawfully take photographs or create videos of
herself engaging in sexual activity or masturbation without committing the offense of
pandering as set forth in R.C. 2907.322(A)(1), but a minor cannot lawfully engage in the
same conduct. A.Y. argues that this disparity demonstrates that the statute results in
punishment for minors but not their similarly-situated adult counterparts.
{¶ 15} We find this argument unavailing as it necessarily hinges upon the
conclusion that the same conduct violates the statute if committed by a minor but not if
committed by an adult. However, the proscribed conduct is not creating or recording
material that shows oneself engaged in sexual activity. The proscribed activity, instead,
is creating such material when it depicts a minor. The mere fact that a minor is the one
creating the material of herself does not change the nature of the conduct prohibited.
Arguably, a minor could take pictures and make videos of an adult engaging in sexual
activity without committing a violation of R.C. 2907.322(A)(1). Likewise, an adult could
create material showing himself and a minor engaging in sexual activity, and that conduct
would be violative of the statute. Thus, we find no equal protection violation.
{¶ 16} We would be remiss if we did not note that we find this case troubling.
Though we cannot find either a due process or equal protection violation, this case, as
noted, may present a result not envisioned by the legislature. However, as also noted,
this requires legislative, not judicial, action.
{¶ 17} The first assignment of error is overruled.
III. Plea Analysis
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{¶ 18} A.Y.’s asserts the following for her second assignment of error:
A.Y.’S ADMISSION WAS NOT KNOWING, INTELLIGENT, AND
VOLUNTARY. JUV.R. 29; FIFTH AND FOURTEENTH AMENDMENTS
TO THE U.S. CONSTITUTION; ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
{¶ 19} A.Y. contends that her no contest plea was not entered knowingly,
intelligently, and voluntarily because the juvenile court failed to advise her of the nature
of the allegations and of the substance of the complaint as required by Juv.R. 29(D)(1)
and (2).
{¶ 20} Juv.R. 29(D) addresses juvenile admissions and reads in part:
The court may refuse to accept an admission and shall not accept an
admission without addressing the party personally and determining both of
the following:
(1) The party is making the admission voluntarily with understanding of the
nature of the allegations and the consequences of the admission;
(2) The party understands that by entering an admission the party is waiving
the right to challenge the witnesses and evidence against the party, to
remain silent, and to introduce evidence at the adjudicatory hearing.
{¶ 21} “The purpose of Juv.R. 29(D) is to ensure that minors are afforded their due
process right to fundamentally fair treatment in juvenile court proceedings.” In re Miller,
119 Ohio App.3d 52, 57, 694 N.E.2d 500 (2d Dist.1997), citing In re Harris, 104 Ohio
App.3d 324, 662 N.E.2d 34 (2d Dist.1995). “Before accepting a minor's admission, the
court must personally address the minor and determine that he or she is making the
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admission voluntarily, and that he or she understands the rights that are waived by
entering an admission.” Id., citing Juv.R. 29(D).
{¶ 22} “Strict compliance with this rule is preferable, but if a court substantially
complies with the rule, the admission will be deemed valid absent a showing of prejudice
or that the totality of the circumstances do not support a finding of a valid waiver.” In re
T.A., 2d Dist. Champaign Nos. 2011-CA-28 and 2011-CA-35, 2012-Ohio-3174, ¶ 14,
citing In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 113. “For
purposes of juvenile delinquency proceedings, substantial compliance means that in the
totality of the circumstances, the juvenile subjectively understood the implications of his
plea.” In re C.S. at ¶ 113.
{¶ 23} The colloquy between the juvenile court and A.Y. was as follows:
THE COURT: All right. So, [A.Y.], I’m going to ask you the same
questions. I want to make sure that you’re going to be pleading no contest.
Basically means you’re not admitting nor are you denying. You’re basically
not wishing to argue or contest or go any further. You’re just going to let
me take a look at what’s before me make a finding as to whether or not you
are guilty. Okay. Do you understand that, ma’am?
A.Y.: Yes.
THE COURT: Okay. So by making this no contest plea, we’re not going
to have a trial. We’re not going to call any witnesses or introduce any
evidence. You’re giving up your right to remain silent. Do you understand
all of that?
A.Y.: Yes.
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THE COURT: Is anyone forcing you to make this plea?
A.Y.: No.
THE COURT: Are you under any drugs, alcohol or anything I need to be
made aware of?
A.Y.: No.
THE COURT: All right. When you make – when you make this no contest
plea, you still – there’s a possibility of facing consequences such as fines,
court costs, probation, counseling, assessments, community service, letters
of apology, out-of-home placement, corrections time, any other orders I
deem appropriate; and additionally, six months in the Department of Youth
Services up to your 21st birthday because it’s a felony of the second degree.
Do you understand that?
A.Y.: I guess.
THE COURT: Yes. The Department of Youth Services, you understand
that? [Defense Counsel]?
COUNSEL: Yes, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: Yes.
THE COURT: Have you explained that to her, as well?
[DEFENSE COUNSEL]: I didn’t talk about the suspended commitment to
the Ohio Department of Youth Services.
THE COURT: Okay. So basically, because this is a felony of the second
degree that you are admitting to, I’m not saying you would be. But you
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could be sentenced to the Department of Youth Services for six months, up
until your 21st birthday. That’s basically juvenile prison, okay? But, in this
circumstance, right now, that is just one of the possibilities. Do you
understand that?
A.Y.: Yes.
THE COURT: You understand you have the right to object to my decision
within fourteen days, and appeal the Judge’s decision within thirty days.
Do you understand that?
A.Y.: Yes.
THE COURT: And finally, there’s the right to petition to expunge or seal
your record after your last contact with the Court. Do you understand that?
A.Y.: Yes.
THE COURT: All right. I’m going to ask you one more time. Are you still
willing to admit to the pandering charge in 2017-3762, pleading no contest,
correct – you’re pleading no contest to the 2017-3762?
A.Y.: Yes.
{¶ 24} The juvenile court’s plea colloquy failed to ensure that A.Y. understood the
nature of the allegations and the full consequences of her no contest plea; thus, the plea
colloquy did not substantially comply with Juv.R. 29(D)(1). First, the juvenile court, other
than to name the offense, did not discuss the elements of the pandering offense or
otherwise ensure that A.Y. understood the criminal conduct she was not contesting.
Secondly, A.Y., without dispute, was incorrectly advised that she could be sentenced to
DYS for a minimum term of six months when, in fact, the minimum DYS commitment was
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one year. Based upon these deficiencies, we cannot conclude that when A.Y. entered
the no contest plea, she subjectively understood the nature of the offense or the complete
implications of her plea. The juvenile court, accordingly, did not substantially comply
with Juv.R. 29(D), and, as a result, the juvenile court’s judgment must be reversed.
{¶ 25} This conclusion rejects the State’s suggestion that, under the totality of
circumstances, A.Y. understood the nature of the pandering offense. The circumstances
include A.Y.’s indication at the arraignment that she understood the complaint, the content
of her competency evaluation wherein she discussed the allegations, and the fact, as
discussed, that this was A.Y.’s second plea to the pandering offense. The Third
Appellate District has rejected this argument, concluding that Juv.R. 29(D) requires a
juvenile court to ensure “a juvenile’s understanding at the time [she] enters [her]
admission.” (Emphasis sic.) In re D.D., 3d Dist. Putnam No. 12-18-13, 2019-Ohio-
2073, ¶ 16, quoting In re Messmer, 3d Dist. Wyandot No. 16-08-03, 2008-Ohio-4955, ¶
14. This conclusion, as noted by In re D.D., is consistent with conclusions reached by
several appellate districts. In re T.B., 8th Dist. Cuyahoga Nos. 93422 and 93423, 2010-
Ohio-523, ¶ 9-12; In re Scott W., 5th Dist. Licking No. 08 CA 32, 2008-Ohio-6668, ¶ 18-
20; In re Jones, 4th Dist. Gallia No. 99-CA-4, 2000 WL 387727, *4 (Apr. 13, 2000).
{¶ 26} A.Y.’s second assignment of error is sustained.
IV. Ineffective Assistance of Counsel Analysis
{¶ 27} A.Y.’s third assignment of error provides:
A.Y. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN
TRIAL COUNSEL FAILED TO OBJECT TO THE JUVENILE COURT’S
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INSUFFICIENT PLEA COLLOQUY. SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTION 10,
OHIO CONSTITUTION.
{¶ 28} Given the resolution of A.Y.’s second assignment of error, there is no need
to discuss the claimed ineffective assistance of counsel.
{¶ 29} The third assignment of error is overruled as moot.
V. Conclusion
{¶ 30} We affirm the trial court’s judgment insofar as it found that R.C.
2907.322(A)(1) is not unconstitutional. We reverse the trial court’s judgment insofar as
it adjudicated A.Y. to be a delinquent child based on a no contest plea that did not comply
with Juv.R. 29(D)(1). The matter is remanded to the trial court for further proceedings
consistent with this opinion.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Michael P. Allen
Victoria A. Bader
Marshall G. Lachman
Hon. Anthony Capizzi