In re N.D. , 2021 Ohio 4512 ( 2021 )

[Cite as In re N.D., 2021-Ohio-4512.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: N.D., A MINOR CHILD : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
:
: Case No. 21 CA 0040
: 21 CA 0041
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, case
nos. A2017-0471 and A2017-0439
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 17, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM HAYES OFFICE OF THE OHIO PUBLIC
DEFENDER
LICKING CO. PROSECUTOR LAUREN HAMMERSMITH
PAULA M. SAWYERS Assistant State Public Defender
20 South Second St., Fourth Floor 250 East Broad St., Suite 1400
Newark, OH 43055 Columbus, OH 43215
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 2
Delaney, J.
{¶1} Appellant N.D. appeals from the April 30, 2021 Judgment Entry of the
Licking County Court of Common Pleas, Juvenile Division. Appellee is the state of Ohio.
{¶2} The instant appeals are related but not consolidated. This matter arose
from two separate juvenile court case numbers: AXXXXXXXX and AXXXXXXXX. The briefs
and sole assignment of error in both cases are identical.
FACTS AND PROCEDURAL HISTORY
{¶3} In case number AXXXXXXXX, appellant was adjudicated to be a delinquent
child upon three counts of gross sexual imposition (G.S.I.), all felonies of the third degree
pursuant to R.C. 2907.05(A)(4), and one count of G.S.I. pursuant to R.C. 2907.05(A)(1),
a felony of the fourth degree. In case number AXXXXXXXX, appellant was adjudicated to
be a delinquent child upon one count of G.S.I., a felony of the third degree pursuant to
R.C. 2907.05(A)(4). Each count is a “sexually oriented offense” pursuant to R.C.
2950.01(A)(1). Four of the counts are subject to discretionary classification pursuant to
R.C. 2152.83(B).
{¶4} A single count--Count VII in case number AXXXXXXXX—rendered appellant
subject to mandatory classification pursuant to R.C. 2152.83(A)(1) because the offense
occurred between the dates of September 1, 2016 to March 1, 2017, when appellant was
16 to 17 years old.
{¶5} A dispositional hearing was held on November 3, 2017, and appellant was
classified as a Tier II juvenile sex offender registrant for a period of 20 years with in-
person verification every 180 days.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 3
{¶6} On January 9, 2020, appellant’s classification was modified following a
classification review hearing after his discharge from a secure facility. Appellant was then
classified as a Tier I juvenile sex offender registrant for a period of 10 years with in-person
verification annually.
{¶7} Appellant was released from parole on September 16, 2020.
Motion and hearing for declassification
{¶8} Appellant filed a motion for declassification pursuant to R.C. 2152.84 and
the matter proceeded to an evidentiary hearing on April 29, 2021. The following evidence
is adduced from the record of the hearing.
{¶9} The trial court noted the following evidence submitted by the parties:
* * * *.
I’ve recently reviewed the contents of each of the files before
me, including the motion filed on behalf of [appellant], each progress
review summary, the release decision summary, and discharge
decision summary all previously submitted to the Court by the Ohio
Department of Youth Services regarding [appellant]. I have also
reviewed all written reports submitted to this Court by the Probation
Department included in the written report of Probation Officer Lindsay
Rogers filed on April 27th, 2021, recommending a continuation of
[appellant’s] current classification requirements.
And I have reviewed the notice of supplemental exhibit to
motion for declassification that was filed by [defense trial counsel] on
April 28th, 2021, being an email from [appellant’s] former parole
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 4
officer, * * * [and] a letter from [appellant’s] treatment provider at
Osterlen? * * * *.
T. 10-11.
{¶10} Appellee reiterated its position that it opposed appellant’s declassification.
T. 12.
{¶11} Appellant’s probation officer appeared and stated that in addition to the
written report she submitted, allegations existed that appellant contacted two of the
victims upon his release from detention and was dating a minor child as of the hearing
date. T. 12.
{¶12} The Victim Advocate noted the victims report ongoing trauma from
appellant’s offenses, and also stated appellant contacted two of the victims upon his
release from detention. The victims and their families collectively opposed appellant’s
declassification. T. 14.
{¶13} Appellant’s guardian ad litem (G.A.L.) opined appellant was statutorily
ineligible for declassification, but added that if the trial court deemed him eligible, she
supported declassification. The G.A.L. stated:
* * * *.
It’s my opinion that he has gone above and beyond what’s
been asked of him. He successfully completed treatment. He’s
become employed. He completed parole successfully; in fact, that
he had no violations. And I believe that if there had been some sort
of contact with the victim, I would have to believe that that would have
been reported to the parole officer upon his release from DYS.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 5
So at this time, I would be in support of that if the Court deems
that he is eligible.
* * * *.
T. 14-15.
{¶14} Appellant’s Father testified on his behalf. Father said appellant lives alone
in an apartment in Columbus, and Father and son for the same communications firm.
They install Wi-Fi and internet service. Someone observed appellant working in a
children’s hospital and reported him to security because they were aware of the instant
case. The employer did not fire appellant but instead transferred his work location. When
cross-examined about appellant’s current girlfriend, Father said she was 18 years old.
Exhibit: probation officer’s report of April 27, 2021
{¶15} Appellant’s probation officer testified at the hearing and provided a written
report dated April 27, 2021. The report is in the record for our review and we note the
following pertinent facts.
{¶16} Appellant applied for judicial release while committed to DYS, but his
request was denied because appellant was engaged in a consensual sexual relationship
with another youth in the facility, resulting in his removal from the program and not having
completed Phase 2 of substance abuse training.
{¶17} Appellant’s parole officer told probation that appellant did “fantastic” and
successfully completed parole, including graduating from high school, beginning an
apprenticeship with a heating and cooling provider, and engaging in aftercare services to
address problematic sexual behaviors.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 6
{¶18} Appellant first became involved in the juvenile justice system in 2015 when
he was placed on diversion for possession of criminal tools. The nature of the offense
was sending nude photos of himself and receiving photos of a peer-aged female.
Appellant was found to be in violation of the diversion contract when he was found in
possession of a cell phone which he used to access Facebook, send more nude photos
to a female via Snapchat, and to send a sexually-explicit note to a female at school.
These offenses occurred while appellant was on court supervision. Diversion was
terminated and he was placed on probation.
{¶19} In the instant G.S.I. cases, appellant offended against five victims ranging
in age from 5 years old to 15 years old. Appellant self-reported that each victim was
victimized two to three times with the exception of one.
{¶20} An element of physical force was involved in terms of appellant preventing
smaller victims from resisting such as grabbing the victim’s arm and forcing her to touch
his penis.
{¶21} Appellant did complete sex-offender-specific programming while at DYS.
He also continued in aftercare and worked on addressing problematic sexual behaviors.
{¶22} Appellant reported that he forced others to engage in sexual encounters.
His older victims asked him to stop on several occasions however their pleas were
ignored. He used physical force with at least one victim by forcefully taking that victim’s
hand and placing it on his penis. He did not consider how this made his victims feel and
the long-term effects that his actions could cause.
{¶23} Appellant displayed a history of sexual abuse and acting out as evidenced
by his prior court contact. During his court supervision his level of risk increased and then
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 7
continued when in a secured facility by engaging in a sexual relationship with another
youth knowing that it was against the policy causing him to be removed from the program.
He has only recently begun to display any remorse or empathy for his actions/victims.
{¶24} The report concludes:
* * * *.
At this time due to information above such as the age of all
but one of the victims being under the age of 13, the number of times
the abuse occurred, [the] fact that he has a history of inappropriate
sexual behaviors leading to multiple delinquency adjudications,
acting out sexually while in a secure placement, and displaying little
victim empathy, Probation Department would recommend that
[appellant] continued to register as a TIER I Juvenile Sex Offender
Registrant at this time.
* * * *.
Exhibit: parole officer’s email dated April 26, 2021
{¶25} Appellant offered an email from his parole officer as an exhibit at the
hearing. The email states the following in pertinent part:
* * * *.
My name is Kyle L. Dickinson Parole Officer for the Ohio
Department of Youth Services and I was the parole officer for
[appellant] from co 12/21/19 to 9/16/20. During that period of time
[appellant] complied with any and all that was requested of him.
Upon release [appellant] was placed in Springfield, Ohio, living with
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 8
his mother. [Appellant] enrolled in OIC and completed class work
allowing him to obtain his diploma. [Appellant] contacted Oesterlen
for Youth and was involved in Sex Offender counseling. His
counselor was Bob Hayes and he attended the entire time he lived
in Springfield and was terminated successfully by Mr. Hays. Bob
said that [appellant] was very knowledgeable concerning his flags
and triggers and had a solid plan of prevention and thought process
not to re-offend. [Appellant] was registered as a tier one sex offender
in Clark Co. he [sic] signed up with Andria Trego SORN Officer with
Clark Co. Sheriff’s Dept. phone number [XXX]. When [appellant] was
getting ready to be successfully terminated from parole he contacted
Officer Trego and asked about transferring his registration to Licking
County and she assisted him. [Appellant] completed his 20 hour[s]
of community service at the Clark County Humane Society, without
any complaint whatsoever. I met with [appellant] weekly either at his
home or at various work sites. [Appellant] was always willing to meet
with this writer and was always polite and pleasant. [Appellant] was
employed the entire time he was on parole aftercare. [Appellant]
took the initiative to find employment in heating and cooling. He
worked in Springfield and surrounding areas for [Heating and
Cooling Company]. [Appellant] obtained an apprenticeship with
them while he worked there. I met with [appellant] on the job on
several occasions and they said he did a good job.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 9
[Appellant] has successfully completed every aspect of his
parole above and beyond expectations.
* * * *.
{¶26} At the conclusion of the hearing, the trial court noted appellant was subject
to mandatory classification pursuant to R.C. 2152.83(A) and the effectiveness of his
disposition was subject to review pursuant to R.C. 2152.84 to determine the risk that
appellant might re-offend and to review the prior classification and tier level.
{¶27} The trial court did note that pursuant to R.C. 2151.84(A)(2), it was limited
to continuing appellant’s classification as a Juvenile Offender Registrant and the prior
determination as a Tier I sex offender. However, the trial court noted, “Regardless of
statutory limitations, based upon this Court’s review and the information presented, the
Court does find that [appellant]’s classification as a juvenile offender registrant and prior
determination as a Tier I sex offender shall continue.” T. 35-36.
{¶28} Appellant now appeals from the trial court’s decision to continue his
classification as a Tier I sex offender.
{¶29} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶30} “THE LICKING COUNTY JUVENILE COURT ERRED WHEN IT DENIED
N.D.’S MOTION FOR DECLASSIFICATION FROM THE JUVENILE SEX OFFENSE
REGISTRY, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION.”
ANALYSIS
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 10
{¶31} Appellant argues he was denied due process of law because he was
statutorily prevented from declassification as a Tier I juvenile sex offender. We disagree.
{¶32} In the instant case, the relevant count at issue is Count VII in case number
A2017047, rendering appellant subject to mandatory classification pursuant to R.C.
2152.83(A)(1) because the offense occurred when he was 16 to 17 years old. Appellant
argues that because R.C. 2152.84(A)(2)(c) prevents his declassification, he has been
denied due process.
Classification of juvenile sex offenders
{¶33} The Ohio Supreme Court provided a helpful overview of the classification
process for juvenile sex offenders in In re R.B., 162 Ohio St.3d 281, 2020-Ohio-5476, 165
N.E.3d 288, reconsideration denied sub nom. In re R.B, 160 Ohio St.3d 1511, 2020-Ohio-
6835, 159 N.E.3d 1167, at ¶ 4-5:
When a juvenile commits a sex offense, the juvenile court has
the ability to classify the juvenile as a sex offender. See generally
R.C. 2152.82 through 2152.86; 2007 Am.Sub.S.B. No. 10 (Ohio's
Adam Walsh Act). A juvenile who has been classified as a sex
offender has certain legal obligations, such as registering and
periodically verifying his address in person with the sheriff. See R.C.
2950.07. The frequency with which the juvenile must report and the
duration of his reporting requirements depend on the level of the
classification imposed. Id.Unlike adult offenders, whose classification levels are based
solely on the underlying offense, see R.C. 2950.01, the juvenile court
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 11
has discretion to determine the appropriate classification for a
juvenile offender, see R.C. 2152.83(A)(2) and (B)(2). Additionally,
while adult classifications flow directly from the conviction and are
not subject to modification, the juvenile court retains jurisdiction to
review a juvenile offender's classification. The classification process
is set forth in a series of statutes (the “classification statutes”). The
juvenile court conducts a hearing at the time of the juvenile's
disposition, see R.C. 2152.83, and at the time the juvenile completes
the disposition, see R.C. 2152.84. After that, the juvenile may petition
the juvenile court for review every three or five years. See R.C.
2152.85.
{¶34} R.C. 2152.83 addresses the “initial classification hearing” in the words of
the Ohio Supreme Court. In re R.B., 162 Ohio St.3d 281, 2020-Ohio-5476, 165 N.E.3d
288, reconsideration denied sub nom. In re R.B, 160 Ohio St.3d 1511, 2020-Ohio-6835,
159 N.E.3d 1167, ¶ 8. In the instant case, appellant was subject to R.C. 2152.83(A)
because he was 16 or 17 years old at the time of the relevant offense.1 The trial court
1 R.C. 2152.83(A)(1) states:
The court that adjudicates a child a delinquent child shall issue as
part of the dispositional order or, if the court commits the child for the
delinquent act to the custody of a secure facility, shall issue at the time of
the child's release from the secure facility an order that classifies the child
a juvenile offender registrant and specifies that the child has a duty to
comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the
Revised Code if all of the following apply:
(a) The act for which the child is or was adjudicated a delinquent child
is a sexually oriented offense or a child-victim oriented offense that the child
committed on or after January 1, 2002.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 12
must notify the juvenile of his registration and reporting requirements. R.C. 2152.83(C)(3).
The court is also required to tell the juvenile that a second hearing will be held at the end
of his disposition pursuant to R.C. 2152.84 and that his classification may be modified or
terminated at that time. R.C. 2152.83(C)(3). R.C. 2152.83(E) provides that the initial
classification order “shall remain in effect for the period of time specified in section
2950.07 of the Revised Code, subject to a modification or termination of the order under
section 2152.84 of the Revised Code.”
{¶35} R.C. 2950.07 outlines the duration of a juvenile offender's duty to register.
For a juvenile classified as a Tier I offender, the duty to register lasts for 10 years; for a
Tier II juvenile offender, the obligation continues for 20 years; and a juvenile classified as
a Tier III offender must register for life. R.C. 2950.07(B). Further, “[t]he child's attainment
of eighteen or twenty-one years of age does not affect or terminate the order, and the
order remains in effect for the period of time described in this division.” R.C. 2152.83(E).
{¶36} The issue presented by the instant appeal involves appellant’s completion-
of-disposition hearing described in R.C. 2152.84. That section states in pertinent part:
(b) The child was sixteen or seventeen years of age at the time of
committing the offense.
(c) The court was not required to classify the child a juvenile offender
registrant under section 2152.82 of the Revised Code or as both a juvenile
offender registrant and a public registry-qualified juvenile offender registrant
under section 2152.86 of the Revised Code.
(2) Prior to issuing the order required by division (A)(2) of this section,
the judge shall conduct a hearing under section 2152.831 of the Revised
Code, except as otherwise provided in that section, to determine whether
the child is a tier I sex offender/child-victim offender, a tier II sex
offender/child-victim offender, or a tier III sex offender/child-victim offender.
When a judge issues an order under division (A)(1) of this section, the judge
shall include in the order the determinations identified in division (B) (5) of
section 2152.82 of the Revised Code.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 13
(A)(1) When a juvenile court judge issues an order under * * *
division (A) * * * of section 2152.83 of the Revised Code that
classifies a delinquent child a juvenile offender registrant and
specifies that the child has a duty to comply with sections 2950.04,
2950.041, 2950.05, and 2950.06 of the Revised Code, upon
completion of the disposition of that child made for the sexually
oriented offense or the child-victim oriented offense on which the
juvenile offender registrant order was based, the judge or the judge's
successor in office shall conduct a hearing to review the
effectiveness of the disposition and of any treatment provided for the
child, to determine the risks that the child might re-offend, to
determine whether the prior classification of the child as a juvenile
offender registrant should be continued or terminated as provided
under division (A)(2) of this section, and to determine whether its
prior determination made at the hearing held pursuant to section
2152.831 of the Revised Code as to whether the child is a tier I sex
offender/child-victim offender, a tier II sex offender/child-victim
offender, or a tier III sex offender/child-victim offender should be
continued or modified as provided under division (A)(2) of this
section.
(2) Upon completion of a hearing under division (A)(1) of this
section, the judge, in the judge's discretion and after consideration of
all relevant factors, including but not limited to, the factors listed in
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 14
division (D) of section 2152.83 of the Revised Code, shall do one of
the following as applicable:
(a) Enter an order that continues the classification of the
delinquent child as a juvenile offender registrant made in the prior
order issued under section 2152.82 or division (A) or (B) of section
2152.83 of the Revised Code and the prior determination included in
the order that the child is a tier I sex offender/child-victim offender, a
tier II sex offender/child-victim offender, or a tier III sex offender/child-
victim offender, whichever is applicable;
(b) If the prior order was issued under division (B) of section
2152.83 of the Revised Code, enter an order that contains a
determination that the delinquent child no longer is a juvenile
offender registrant and no longer has a duty to comply with sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code. An
order issued under division (A)(2)(b) of this section also terminates
all prior determinations that the child is a tier I sex offender/child-
victim offender, a tier II sex offender/child-victim offender, or a tier III
sex offender/child-victim offender, whichever is applicable. Division
(A)(2)(b) of this section does not apply to a prior order issued under
section 2152.82 or division (A) of section 2152.83 of the Revised
Code.
(c) If the prior order was issued under section 2152.82 or
division (A) or (B) of section 2152.83 of the Revised Code, enter an
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 15
order that continues the classification of the delinquent child as a
juvenile offender registrant made in the prior order issued under
section 2152.82 or division (A) or (B) of section 2152.83 of the
Revised Code, and that modifies the prior determination made at the
hearing held pursuant to section 2152.831 of the Revised Code that
the child is a tier I sex offender/child-victim offender, a tier II sex
offender/child-victim offender, or a tier III sex offender/child-victim
offender, whichever is applicable. An order issued under division
(A)(2)(c) of this section shall not include a determination that
increases to a higher tier the tier classification of the delinquent child.
An order issued under division (A)(2)(c) of this section shall specify
the new determination made by the court at a hearing held pursuant
to division (A)(1) of this section as to whether the child is a tier I sex
offender/child-victim offender, a tier II sex offender/child-victim
offender, or a tier III sex offender/child-victim offender, whichever is
applicable.
(B)(1) If a judge issues an order under division (A)(2)(a) of this
section that continues the prior classification of the delinquent child
as a juvenile offender registrant and the prior determination included
in the order that the child is a tier I sex offender/child-victim offender,
a tier II sex offender/child-victim offender, or a tier III sex
offender/child-victim offender, whichever is applicable, the prior
classification and the prior determination shall remain in effect.
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 16
(2) A judge may issue an order under division (A)(2)(c) of this
section that contains a determination that reclassifies a child from a
tier III sex offender/child-victim offender classification to a tier II sex
offender/child-victim offender classification or to a tier I sex
offender/child-victim offender classification.
A judge may issue an order under division (A)(2)(c) of this
section that contains a determination that reclassifies a child from a
tier II sex offender/child-victim offender classification. A judge may
not issue an order under that division that contains a determination
that reclassifies a child from a tier II sex offender/child-victim offender
classification to a tier III sex offender/child-victim offender
classification.
A judge may not issue an order under division (A)(2)(c) of this
section that contains a determination that reclassifies a child from a
tier I sex offender/child-victim offender classification to a tier II sex
offender/child-victim offender classification or to a tier III sex
offender/child-victim offender classification.
If a judge issues an order under this division that contains a
determination that reclassifies a child, the judge shall provide a copy
of the order to the delinquent child and the bureau of criminal
identification and investigation, and the bureau, upon receipt of the
copy of the order, promptly shall notify the sheriff with whom the child
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 17
most recently registered under section 2950.04 or 2950.041 of the
Revised Code of the determination and reclassification.
(3) If a judge issues an order under division (A)(2)(b) of this
section that declassifies the delinquent child as a juvenile offender
registrant, the judge shall provide a copy of the order to the bureau
of criminal identification and investigation, and the bureau, upon
receipt of the copy of the order, promptly shall notify the sheriff with
whom the child most recently registered under section 2950.04 or
2950.041 of the Revised Code of the declassification.
(C) If a judge issues an order under division (A)(2)(a), (b), or
(c) of this section, the judge shall provide to the delinquent child and
to the delinquent child's parent, guardian, or custodian a copy of the
order and, if applicable, a notice containing the information described
in divisions (A) and (B) of section 2950.03 of the Revised Code. The
judge shall provide the notice at the time of the issuance of the order
and shall comply with divisions (B) and (C) of that section regarding
that notice and the provision of it.
(D) An order issued under division (A)(2)(a) or (c) of this
section and any determinations included in the order shall remain in
effect for the period of time specified in section 2950.07 of the
Revised Code, subject to a modification or termination of the order
under section 2152.85 of the Revised Code, and section 2152.851
of the Revised Code applies regarding the order and the
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 18
determinations. If an order is issued under division (A)(2)(a) or (c) of
this section, the child's attainment of eighteen or twenty-one years of
age does not affect or terminate the order, and the order remains in
effect for the period of time described in this division.
* * * *.
{¶37} Finally, R.C. 2152.85 allows a juvenile classified as a sex offender to
petition the juvenile court at certain intervals to have his classification modified or
removed (we will call this the “periodic-review provision”). The juvenile may first petition
the court for review three years after the completion-of-disposition hearing. R.C.
2152.85(B)(1). The juvenile may petition the court a second time three years after the first
petition was filed, R.C. 2152.85(B)(2), and then every five years after that for the duration
of the registration period, R.C. 2152.85(B)(3). See also In re D.S., 146 Ohio St.3d 182,
2016-Ohio-1027, 54 N.E.3d 1184, ¶ 36.
Procedural due process and classification of juvenile sex offenders
{¶38} Appellant argues R.C. 2152.84(A)(2)(a) effectively prevents the juvenile
court from declassifying mandatory registrants, thereby rendering the hearing
meaningless. Appellant asks us to agree with the First District Court of Appeals in finding
R.C. 2152.84 violative of the due process rights of mandatory Tier I registrants. In re
D.R., 1st Dist. Hamilton No. C-190594, 2021-Ohio-1797, 173 N.E.3d 103, ¶ 16, appeal
allowed, 164 Ohio St.3d 1460, 2021-Ohio-3594.
{¶39} Due process in the context of the juvenile justice system is guided by
principles of fundamental fairness. “Constitutional procedural safeguards in the juvenile
context find their genesis in the Due Process Clause of the Fourteenth Amendment to the
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 19
United States Constitution.” In re D.R., 5th Dist. Knox No. 13CA27, 2014-Ohio-588, ¶ 17,
citing State v. D.H., 120 Ohio St.3d 540, 2009–Ohio–9, 901 N.E.2d 209, ¶ 44. “Due
process standards as they relate to juvenile proceedings are inexact; this court has held
that ‘fundamental fairness is the overarching concern.’” Id. at ¶ 51; In re C.P., 131 Ohio
St.3d 513, 2012–Ohio–1446, 967 N.E.2d 729, ¶ 71.
{¶40} The right to procedural due process is found in the Fourteenth Amendment
to the United States Constitution and Section 16, Article I of the Ohio Constitution. The
United States Supreme Court has explained, “From the inception of the juvenile court
system, wide differences have been tolerated—indeed insisted upon—between the
procedural rights accorded to adults and those of juveniles.” In re Gault, 387 U.S. 1, 14,
87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Although certain constitutional protections afforded
adults, including notice, confrontation, the right to counsel, the privilege against self-
incrimination, and freedom from double jeopardy, are applicable to juvenile proceedings,
other protections, including trial by jury, are not. See Schall v. Martin, 467 U.S. 253, 263,
104 S.Ct. 2403, 81 L.Ed.2d 207 (1984); McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91
S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Agler, 19 Ohio St.2d 70, 78, 249 N.E.2d 808(1969).
{¶41} The United States Supreme Court has expressly recognized that “the
Constitution does not mandate elimination of all differences in the treatment of juveniles.”
Schall at 263. In fact, the Supreme Court has expressly recognized that the “acceptance
of juvenile courts distinct from the adult criminal justice system assumes that juvenile
offenders constitutionally may be treated differently from adults.” Bellotti v. Baird, 443
U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). This different treatment is justified
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 20
because of the state's interest in preserving and promoting the welfare of the child. Schall;
McKeiver.
{¶42} Juvenile proceedings are “civil” rather than criminal and, in theory, the
priority of the juvenile system has been rehabilitation, rather than punishment. Society
generally refuses to penalize youth offenders as harshly or to hold them to the same level
of culpability as adults, who are older and, presumably, wiser and more mature. Unless
bound over to the adult criminal system by a discretionary process, youthful offenders are
adjudicated to be “juvenile delinquents” and are placed in special juvenile rehabilitation
and detention centers. In line with the traditional view of the treatment of juveniles,
punishment is not the goal of the Ohio juvenile system, except as necessary to direct the
child toward the goal of rehabilitation. In re Caldwell, 76 Ohio St.3d 156, 157, 666 N.E.2d
1367 (1996).
{¶43} Fundamental fairness requires that juveniles be protected from “oppression,
harassment, or egregious deprivation.” In re W.Z., 6th Dist. No. S-09-036, 194 Ohio
App.3d 610, 2011-Ohio-3238, 957 N.E.2d 367, ¶ 63.
{¶44} Turning to appellant’s argument, we find R.C. 2152.84 does not violate his
right to procedural due process because we do not find that appellant has a substantive
due process right to removal of the Tier I classification at the R.C. 2152.84 completion-
of-disposition hearing.
{¶45} Appellant argues the mandatory nature of the continued Tier-I classification
in the case of a 16- or 17-year-old offender effectively removes the discretion of the
juvenile court. Brief, 7. “However, the special discretion of the juvenile court judge
sometimes yields to the directives of the legislature.” In re D.C., 1st Dist. No. C-180354,
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 21
2019-Ohio-4860, 149 N.E.3d 989, ¶ 37. The legislature could have rationally determined
that sex offenses committed by 16- and 17-year-olds were sufficiently serious that the
juvenile offenders are not to be declassified at the completion-of-disposition hearing.
See, State v. McKinney, 2015-Ohio-4398, 46 N.E.3d 179, ¶ 23 (1st Dist.) [legislature
could have “rationally determined that crimes involving firearms committed by older
juveniles were sufficiently serious that society would not be adequately protected by the
more lenient juvenile court system”]. Especially under the circumstances of the instant
case, fundamental fairness does not require elimination of appellant’s Tier I juvenile sex
offender classification.
{¶46} We also find that R.C. 2152.84 does not eliminate all meaningful discretion
from the juvenile court. The court retains discretion to determine which tier to apply to
the offender. The completion-of-disposition hearing requires the court to evaluate the
offender’s progress. Finally, the duty to register may be removed in three years.
Appellant is not consigned to perpetual registration as a Tier I sex offender; his
classification remains subject to review pursuant to R.C. 2152.85.
{¶47} Finally, we note that we are not convinced the instant case is ripe for review.
Underlying appellant’s argument is the unfounded assertion that he would have been
declassified at the hearing if the statute permitted the trial court to do so; this premise is
belied by the record of the hearing. The trial court noted that regardless of the
unchangeability of the Tier I classification, declassification was not appropriate in the
instant case regardless. T. 35-36.
{¶48} Thus, the timing of appellant’s due process challenge is questionable
because he is not a candidate for declassification at this time. The Ohio Supreme Court
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 22
discussed the concept of ripeness for review in State ex rel. Elyria Foundry Co. v. Indus.
Comm., 82 Ohio St.3d 88, 89, 1998-Ohio-366, 694 N.E.2d 459:
{¶49} Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization
Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320, 351 (1974). The ripeness
doctrine is motivated in part by the desire “to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies * * *.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct.
1507, 18 L.Ed.2d 681 (1967). As one writer has observed:
“The basic principle of ripeness may be derived from the
conclusion that ‘judicial machinery should be conserved for problems
which are real or present and imminent, not squandered on problems
which are abstract or hypothetical or remote.’ * * * [T]he prerequisite
of ripeness is a limitation on jurisdiction that is nevertheless basically
optimistic as regards the prospects of a day in court: the time for
judicial relief is simply not yet arrived, even though the alleged action
of the defendant foretells legal injury to the plaintiff.” Comment,
Mootness and Ripeness: The Postman Always Rings Twice, 65
Colum. L.Rev. 867, 876 (1965).
State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-
Ohio-5013, ¶ 9-10.
{¶50} We find appellant’s argument that he was entitled to declassification
unavailing, further undermining his contention that he was deprived of procedural due
Licking County, Case Nos. 21 CA 0040 and 21 CA 0041 23
process. Appellant had no substantive right to declassification because the trial court
would not have declassified him regardless of the effect of R.C. 2152.84(A)(2)(a).
{¶51} Appellant’s sole assignment of error is overruled and the judgment of the
Licking County Court of Common Pleas, Juvenile Division is affirmed.
CONCLUSION
{¶52} Appellant’s sole assignment of error is overruled and the judgment of the
Licking County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, Earle, J., concur.