In re D.R.

2021 Ohio 1797

• Court: Ohio Court of Appeals
• Decided: May 26, 2021
• Docket: C-190594
• Status: Published

Opinion

[Cite as In re D.R., 2021-Ohio-1797.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: D.R. : APPEAL NO. C-190594 TRIAL NO. 18-901Z :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 26, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss, Assistant Public Defender, for Defendant-Appellant D.R. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge. {¶1} D.R. has appealed the judgment of the juvenile court continuing his

classification as a Tier I juvenile-offender registrant under Ohio’s version of the

Adam Walsh Act. We hold that D.R.’s continued classification as a Tier I juvenile-

offender registrant violated his procedural due-process rights. Therefore, we reverse

the juvenile court’s order continuing D.R.’s Tier I classification and remand this

cause for a new completion-of-disposition hearing under R.C. 2152.84, during which

the juvenile court may exercise its discretion to continue D.R.’s classification as a

Tier I juvenile-offender registrant or declassify him.

I. Procedural Background

{¶2} On April 5, 2018, D.R. admitted in juvenile court to an act which, if

committed by an adult, would have constituted gross sexual imposition against a

victim under the age of 13. D.R. was 16 at the time of the offense; the victim was a

12-year-old friend. D.R. was committed to the Department of Youth Services

(“DYS”) until age 21. The commitment was suspended, and he was placed on

probation and ordered to complete the Lighthouse Youth Services Sex Offender

Program. Because D.R. was 16 at the time of the offense, the juvenile court was

required to classify him as a juvenile-offender registrant under R.C. 2152.83. On

August 23, 2018, the juvenile court classified D.R. as a Tier I juvenile-offender

registrant.

{¶3} Pursuant to R.C. 2152.84, the juvenile court magistrate held a

completion-of-disposition hearing on June 7, 2019. D.R. raised constitutional

challenges to R.C. 2152.83 and 2152.84, which the magistrate overruled. The

magistrate noted in her decision that the court had no discretion to declassify D.R.

because he was 16 at the time of his offense, and therefore, D.R’s “classification

status will remain a Tier I.” After continuing D.R.’s Tier I classification, the

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magistrate stated in her decision, “Additionally, the Court notes that [D.R.] has

successfully completed all conditions imposed upon him by this Court. He has not

been convicted of any subsequent offense. He is successfully completing a period of

probation; and he has successfully completed an appropriate sex offender treatment

program. He is also enrolled in college. Thus, the Court terminates the juvenile’s

period of probation.” D.R. filed objections to the magistrate’s decision, which the

juvenile court judge overruled. The juvenile court adopted the magistrate’s decision

as the order of the court, but the court stated that D.R.’s due-process argument had

some merit as it pertained to the mandatory classification of 16- and 17-year-old

offenders. The juvenile court invited D.R. to raise his due-process argument on

appeal. As the juvenile court’s initial entry of September 17, 2019, failed to state that

the court had continued the Tier I classification, the court entered an order on

October 4, 2019, nunc pro tunc to September 17, 2019, stating that the Tier I

classification was continued. D.R. has appealed.

II. Analysis

{¶4} R.C. 2152.83 treats juvenile sex offenders differently with respect to

classification as juvenile-offender registrants based on their ages at the time of their

offenses. A child who was 13 or younger at the time of his offense is not subject to

sex-offender classification. R.C. 2152.83(A)(1) and (B)(2). A 14- or 15-year-old

offender is subject to discretionary classification in that the juvenile court has

discretion to decide whether the child will be classified and into which tier he will be

placed. R.C. 2152.83(B)(1). An offender who was 16 or 17 years old at the time of his

offense is subject to mandatory classification as a juvenile-offender registrant, but

the juvenile court has discretion as to what tier the juvenile will be placed in. R.C.

2152.83(A)(1).

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{¶5} R.C. 2152.84(A)(1) provides that upon the completion of the

disposition of the child for the sexually oriented offense, the juvenile court “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” pursuant to R.C. 2152.84(A)(2), and

“to determine whether its prior determination” as to which tier the child should be

placed in “should be continued or modified.” The court can only lower the child’s

tier, it cannot increase it. R.C. 2152.84(B)(2); In re M.I., 2017-Ohio-1524, 88 N.E.3d

1276, ¶ 2 (1st Dist.). But pursuant to R.C. 2152.84(A)(2), if the child is a mandatory

juvenile-offender registrant who has been placed in the lowest tier classification, Tier

I, the juvenile court can do nothing but continue the Tier I classification.

{¶6} We first turn to D.R.’s second assignment of error, which asserts that

his continued mandatory classification as a Tier I juvenile-offender registrant

pursuant to R.C. 2152.84(A)(2)(a) violates the Equal Protection Clauses of the United

States and Ohio Constitutions.

{¶7} In In re M.I., this court held that the mandatory classification of 16-

and 17-year-old sex offenders under R.C. 2152.83(A) and 2152.84(A)(2)(c) does not

violate equal protection because the statutes are rationally related to the legitimate

governmental interest of protecting the public from sex offenders. We noted the

presumption of constitutionality afforded to the statutes and the burden on the

juvenile to prove that they are unconstitutional. We stated that the purpose of sex-

offender registration is to protect the public, and that the legislature’s concern for

recidivism and public safety provides a rational basis for treating juvenile sex

offenders differently based on their ages. In re M.I. at ¶ 2-6. M.I. did not raise, and

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therefore, we did not address whether M.I.’s due-process rights were violated,

leaving that question open. D.R.’s second assignment of error is overruled.

{¶8} D.R.’s first assignment of error asserts that his continued classification

as a Tier I offender violated his right to due process as guaranteed by the Fourteenth

Amendment to the United States Constitution and Article I, Section 19 of the Ohio

Constitution. D.R. argues that although R.C. 2152.84(A)(1) entitles him to a

completion-of-disposition hearing, his status as a 16-year-old mandatory juvenile-

offender registrant who has been classified in the lowest tier, Tier I, means that the

hearing is meaningless because the juvenile court has no discretion to declassify him.

He argues that although the court is required to hold the hearing and consider the

statutory factors, the result of the hearing is a foregone conclusion because the

juvenile court can do nothing but continue his classification as a Tier I offender. The

rehabilitative goal of the juvenile court is undermined by eliminating the discretion

of the juvenile judge. This, he argues, does not comport with procedural due process.

{¶9} The Due Course of Law provision in Article I, Section 16 of the Ohio

Constitution is the equivalent of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. State v. Aalim, 150 Ohio St.3d 489,

2017-Ohio-2956, 83 N.E.3d 883, ¶ 15. “The Due Process Clause is applicable in

juvenile proceedings, and although its requirements are inexact, fundamental

fairness is the overarching concern,” and “a balanced approach is necessary to

preserve the special nature of the juvenile process while protecting procedural

fairness.” In re D.C., 2019-Ohio-4860, 149 N.E.3d 989, ¶ 35 (1st Dist.), citing State

v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 51. “Procedural due

process requires ‘that an individual be given an opportunity to be heard at a

meaningful time and in a meaningful manner.’ ” In re Raheem L., 2013-Ohio-2423,

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993 N.E.2d 455, ¶ 6 (1st Dist.), quoting Morrison v. Warren, 375 F.3d 468, 475 (6th

Cir.2004), citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d

18 (1976). This court noted in In re M.I. that the “Ohio Supreme Court has held that

under the Due Process Clause of the Ohio Constitution, a juvenile has a right to

‘fundamental fairness’ that is violated where mandatory provisions in the juvenile

statutes eliminate the ‘ “essential element of the juvenile process”—the judge’s

discretion.’ ” In re M.I. at ¶ 7, quoting In re D.S., 146 Ohio St.3d 182, 2016-Ohio-

1027, 54 N.E.3d 1184, ¶ 30, citing In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446,

967 N.E.2d 729, ¶ 77.

{¶10} In In re C.P., the Ohio Supreme Court held that R.C. 2152.86 violated

due process to the extent that it imposed lifelong registration and notification

requirements on juvenile sex offenders who were tried within the juvenile system. In

re C.P. at ¶ 86. The court stated that “fundamental fairness is the overarching

concern” in determining due-process standards as they relate to juveniles. Id. at ¶ 71,

quoting D.H. at ¶ 44. The court noted that in requiring the imposition of a lifetime

punishment with no chance of reconsideration for 25 years, R.C. 2152.86 eliminated

the discretion of the juvenile judge. Id. at ¶ 77. The juvenile judge has no

opportunity to determine whether the juvenile has been rehabilitated. Id. at ¶ 82-83.

The court stated that an “automatic longterm punishment is contrary to the juvenile

court’s emphasis on individual, corrective treatment and rehabilitation.” Id. The

imposition of an adult penalty with no input from the juvenile judge, who does not

decide the appropriateness of the penalty, violates fundamental fairness. Id. at ¶ 78.

Additional procedural safeguards were required in order to meet the juvenile court’s

goals of rehabilitation and reintegration into society. Id. at ¶ 85. “The protections

and rehabilitative aims of the juvenile process must remain paramount; we must

recognize that juvenile offenders are less culpable and more amenable to reform than

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adult offenders.” Id. ¶ 84. The court ultimately held that imposing automatic,

lifetime requirements of sex-offender registration and notification without the

participation of a juvenile judge violated due process. Id. at ¶ 86.

{¶11} The Ohio Supreme Court has held that the imposition of registration

and notification requirements on a juvenile that continue beyond age 18 or 21 does

not violate due process. In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d

1184. But the court pointed out in In re D.S. that the juvenile judge exercised

discretion to determine the appropriate tier classification in which to place the

juvenile, unlike the automatic classification at issue in In re C.P. The court stated,

“Thus, the offending aspect of the sentence was the inability of the juvenile court

judge to exercise discretion in fashioning the disposition. When it comes to juvenile

offenders facing penalties into adulthood, ‘[f]undamental fairness requires that the

judge decide the appropriateness of any such penalty.’ ” Id. at ¶ 31, citing In re C.P.

at ¶ 78. The court noted that the classification scheme in In re C.P. was different

from the one in In re D.S. in that the In re C.P. statutory scheme precluded the

juvenile judge from determining whether the juvenile had responded to

rehabilitation. Id. at ¶ 35, citing In re C.P. at ¶ 83. The court also pointed out that

the statutory scheme in In re D.S. provided for periodic review of the juvenile

offender’s registrant status for purposes of modification or termination; the juvenile

judge maintained discretion throughout the course of the offender’s registration

period as to whether to continue, modify or terminate the classification. Id. at ¶ 36.

The court held that the “allowance for periodic review and modification” was

consistent “with the rehabilitative purposes of the juvenile system.” Id. ¶ 37.

{¶12} Because D.R. was 16 at the time he committed his offense, the trial

court was required to classify him as a juvenile-offender registrant. R.C. 2152.83(A).

The juvenile court classified him at disposition as a Tier I juvenile-offender

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registrant, the lowest tier. Upon the completion of D.R.’s disposition, the juvenile

court was required to hold a hearing at which it was “to review the effectiveness of

the disposition and of any treatment provided for [D.R.], to determine the risks that

[D.R.] might re-offend, to determine whether the prior classification * * * should be

continued or terminated * * * and to determine whether its prior determination * * *

as to whether [D.R.] is a tier I sex offender * * * should be continued or modified.”

R.C. 2152.84(A)(1). But pursuant to R.C. 2152.83(A) and 2152.84(A)(2)(b), the court

was prohibited from entering an order declassifying D.R. Even though the juvenile

court was required to hold a hearing and consider the statutory factors, because D.R.

had been classified as a Tier I offender at disposition, the juvenile court had no

discretion to discontinue his classification as a Tier I offender. Therefore, the

completion-of-disposition hearing was meaningless. D.R. was not “ ‘given an

opportunity to be heard at a meaningful time and in a meaningful manner,’ ” in

violation of his due-process rights. See In re Raheem L., 2013-Ohio-2423, 993

N.E.2d 455, at ¶ 6, quoting Morrison, 375 F.3d at 475, citing Mathews, 424 U.S. at

335, 96 S.Ct. 893, 47 L.Ed.2d 18.

{¶13} “Fundamental fairness is the overarching concern” in determining

due-process standards as they relate to juveniles. In re C.P., 131 Ohio St.3d 513,

2012-Ohio-1446, 967 N.E.2d 729, at ¶ 71, quoting D.H., 120 Ohio St.3d 540, 2009-

Ohio-9, 901 N.E.22d 209, at ¶ 44. Procedural safeguards are required to meet the

juvenile court’s goals of rehabilitation and correction. Id. at ¶ 85. As a juvenile

offender, D.R. is less culpable and more amenable to reform than adult offenders.

See id. at ¶ 84. “The disposition of a child is so different from the sentencing of an

adult that fundamental fairness demands the unique expertise of a juvenile judge.”

Id. at ¶ 76, citing D.H. at ¶ 59. “The protections and rehabilitative aims of the

juvenile process must remain paramount * * *.” Id. When a juvenile offender such

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as D.R. is facing a penalty that continues into adulthood, “[f]undamental fairness

requires that the judge decide the appropriateness of any such penalty.” Id. at ¶ 78.

Where the statutory scheme prevents the juvenile court from determining whether

the juvenile has responded to rehabilitation, it offends due process. In re D.S., 146

Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, at ¶ 35, citing In re C.P. at ¶ 83.

{¶14} Here, the essential element of fundamental fairness as it applies in the

juvenile system, the discretion of the juvenile judge in fashioning a disposition, is

missing. Even though the juvenile court was required to hold a hearing and consider

the statutory factors as they related to D.R., the court had no discretion to do

anything but continue D.R.’s classification as a Tier I juvenile-offender registrant.

This is at odds with the rehabilitative goal of the juvenile court in that it precluded

the juvenile court from determining whether D.R. had responded to rehabilitation,

which “undercuts the rehabilitative purpose of Ohio’s juvenile system and eliminates

the important role of the juvenile court’s discretion in the disposition of juvenile

offenders and thus fails to meet the due process requirement of fundamental

fairness.” See In re C.P. at ¶ 85. We hold that R.C. 2152.84 as applied to D.R., a

juvenile-offender registrant who had already been placed in the lowest tier

classification, Tier I, violates due process. D.R.’s continued classification as a Tier I

offender is unconstitutional as a violation of his due-process rights.

{¶15} We note that this case is distinguishable from the Eighth Appellate

District cases of In re D.C., 8th Dist. Cuyahoga No. 103854, 2016-Ohio-4571, and In

re R.A.H., 8th Dist. Cuyahoga No. 101936, 2015-Ohio-3342, rev’d in part on other

grounds, 148 Ohio St.3d 531, 2016-Ohio-7592, 71 N.E.3d 1015, which held that the

mandatory classification of 16- and 17-year-old offenders as juvenile-offender

registrants did not violate due process. In those cases the juveniles were challenging

the constitutionality of the initial classification under R.C. 2152.83(A), and not the

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completion of disposition under R.C. 2152.84. Further, D.C. had been classified as a

Tier II juvenile-offender registrant.

{¶16} The second assignment of error is sustained. Because we hold that

D.R.’s continued classification as a Tier I juvenile-offender registrant violated his

procedural due-process rights, we do not reach his argument under his second

assignment of error that it violates his right to substantive due process or his

argument under his third assignment of error that it violates the prohibition against

cruel and unusual punishment.

{¶17} The juvenile court’s order continuing D.R.’s Tier I classification is

reversed, and this cause is remanded for a new completion-of-disposition hearing

under R.C. 2152.84, during which the juvenile court may exercise its discretion to

continue D.R.’s classification as a Tier I juvenile-offender registrant or declassify

him.

Judgment reversed and cause remanded.

MYERS, P.J., and BERGERON, J., concur.

Please note: The court has recorded its own entry this date.