[Cite as In re K.W., 2012-Ohio-1179.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: IN RE: K. W. : W. Scott Gwin, P.J. : John W. Wise, J. : Julie A. Edwards, J. : : Case No. 2011AP050019 : : : OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 08JD00001
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 19, 2012
APPEARANCES:
For State of Ohio For K. W.
RYAN D. STYER AMANDA J. POWELL Tuscarawas County Prosecutor Assistant State Public Defender Tuscarawas County Prosecutor’s Office 250 East Broad Street, Suite 1400 Courthouse Annex Columbus, Ohio 43215 125 E. High Avenue New Philadelphia, Ohio 44663 [Cite as In re K.W., 2012-Ohio-1179.]
Edwards, J.
{¶1} Appellant, K. W., appeals from the April 21, 2011, Judgment Entry of the
Tuscarawas County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 2, 2008, a delinquency complaint was filed in the Tuscarawas
County Court of Common Pleas, Juvenile Division, alleging that appellant, who was
born on April 24, 1990, committed six counts of rape (counts one, two, five, six, nine,
and ten) in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree if committed by
an adult, and six counts of gross sexual imposition (counts three, four, seven, eight,
eleven and twelve) in violation of 2907.05(A)(4), felonies of the third degree if committed
by an adult. The offenses were alleged to have been committed between January 1,
2006 through May 6, 2006 and June 15, 2007 through August 1, 2007.
{¶3} At his arraignment on January 3, 2008, appellant admitted the charges set
forth in the complaint. As memorialized in a Judgment Entry filed on January 4, 2008,
the trial court found that appellant was a delinquent child as defined by R.C. 2152.02
and ordered that the matter be continued to January 18, 2008, for disposition and to
determine appellant's sexual offender classification.
{¶4} Pursuant to a Judgment Entry filed on February 22, 2008, the trial court
committed appellant to the Ohio Department of Youth Services (DYS) for a minimum of
three years and a maximum to the age of twenty-one on count one (rape) and to a
minimum of two (2) years and a maximum to age twenty-one on count five (rape). The
trial court ordered these commitments to run consecutively. The trial court also
committed appellant to a minimum of three (3) years and a maximum to age twenty-one Tuscarawas County App. Case No. 2011AP050019 3
on counts two, six, nine and ten and ordered such commitments to run concurrently with
counts one and five. Finally, the trial court committed appellant for a minimum of six (6)
months and a maximum to age twenty-one on counts three, four, seven, eight, eleven
and twelve and ordered such commitments to run concurrently with counts one and five.
{¶5} The trial court, in its February 22, 2008, Judgment Entry, also ordered that
appellant be classified as a Tier III juvenile offender registrant.
{¶6} Appellant then appealed, raising the following assignments of error on
appeal:
{¶7} “I. THE TRIAL COURT ERRED WHEN IT CLASSIFIED KRISTOPHER W.
AS A JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT
DETERMINATION UPON HIS RELEASE FROM A SECURE FACILITY, IN VIOLATION
OF R.C. 2152.83(A)(1).
{¶8} “II. THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO
KRISTOPHER W. AS THE APPLICATION OF SENATE BILL TO KRISTOPHER W.
VIOLATES HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶9} “III. THE RETROACTIVE APPLICATION OF SENATE BILL 10 TO
KRISTOPHER W. VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED
STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF SECTION 28,
ARTICLE II OF THE OHIO CONSTITUTION.
{¶10} “IV. KRISTOPHER W. WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL. FOURTEENTH AMENDMENT TO THE Tuscarawas County App. Case No. 2011AP050019 4
UNITED STATES CONSTITUTION, SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.”
{¶11} Pursuant to an Opinion filed in In re Kristopher W., 5TH Dist. No.
2008AP030022, 2008-Ohio-6075, this Court held, in relevant part, as follows:
{¶12} “We recognize that subsection (A)(1) of [R.C. 2152.83] is worded
differently than subsection (B)(1). The General Assembly uses the word ‘shall’ in
subsection (A)(1) rather than the word ‘may.’ Thus, although a juvenile court has
discretion as to the type of disposition it makes, the court apparently does not have
discretion to determine when the delinquent child can be adjudicated a sexual predator.
If a child is committed to DYS, the legislature has decided that such a determination
must wait until the child's release. We recognize that courts must follow a statute's plain
language, regardless of the wisdom of the particular statutory provision.' Id at paragraph
8.
{¶13} “Based on the foregoing, we find that the trial court erred in classifying
appellant as a juvenile offender registrant when it did. Such determination must be
made upon appellant's release from a secure facility.” Id at paragraphs 17-18. We
further found that that the application of Senate Bill 10 to appellant did not violate his
right to due process of law as guaranteed by both the United States and Ohio
Constitutions and that the retroactive application of such Bill, which became effective
January 1, 2008, to him did not violate the ex post facto clause of the United States
Constitution and the retroactivity clause of Section 28, Article II of the Ohio Constitution.
{¶14} Pursuant to a Judgment Entry filed on December 30, 2008, the trial court
indicated that appellant “will not be classified as a Tier III sex offender as previously Tuscarawas County App. Case No. 2011AP050019 5
ordered by this Court.” The trial court released appellant from all reporting duties that
accompany such classification.
{¶15} Upon being advised that appellant was being released from the
Department of Youth Services on April 24, 2011, the trial court, as memorialized in a
Judgment Entry filed on March 29, 2011, set a hearing to review appellant’s
classification. The trial court, via a Judgment Entry filed on April 21, 2011, stated as
follows:
{¶16} “[t]he court…declines to change the previous classification and therefore
said Juvenile will be classified as a Tier III sex offender and subject to community
notification provisions.”
{¶17} Appellant appealed from the trial court’s April 21, 2011 Judgment Entry,
raising the following assignments of error:
{¶18} “I. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED WHEN IT
CONDUCTED A HEARING TO REVIEW KRISTOPHER W.’S JUVENILE SEX
OFFENDER CLASSIFICATION.
{¶19} “II. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED WHEN IT
APPLIED SENATE BILL 10 TO KRISTOPHER W. SECTION 28, ARTICLE II, OHIO
CONSTITUTION; STATE V. WILLIAMS, 129 OHIO (SIC) AT.3D 344, 2011-OHIO-3374,
APPLIED; R.C. 2151.01(B), R.C. 2152.01(A), (B); FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION; AND, ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION.”
{¶20} On November 23, 2011, appellant filed a Motion for Leave to File an
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[Cite as In re K.W., 2012-Ohio-1179.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: IN RE: K. W. : W. Scott Gwin, P.J. : John W. Wise, J. : Julie A. Edwards, J. : : Case No. 2011AP050019 : : : OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 08JD00001
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 19, 2012
APPEARANCES:
For State of Ohio For K. W.
RYAN D. STYER AMANDA J. POWELL Tuscarawas County Prosecutor Assistant State Public Defender Tuscarawas County Prosecutor’s Office 250 East Broad Street, Suite 1400 Courthouse Annex Columbus, Ohio 43215 125 E. High Avenue New Philadelphia, Ohio 44663 [Cite as In re K.W., 2012-Ohio-1179.]
Edwards, J.
{¶1} Appellant, K. W., appeals from the April 21, 2011, Judgment Entry of the
Tuscarawas County Court of Common Pleas, Juvenile Division.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 2, 2008, a delinquency complaint was filed in the Tuscarawas
County Court of Common Pleas, Juvenile Division, alleging that appellant, who was
born on April 24, 1990, committed six counts of rape (counts one, two, five, six, nine,
and ten) in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree if committed by
an adult, and six counts of gross sexual imposition (counts three, four, seven, eight,
eleven and twelve) in violation of 2907.05(A)(4), felonies of the third degree if committed
by an adult. The offenses were alleged to have been committed between January 1,
2006 through May 6, 2006 and June 15, 2007 through August 1, 2007.
{¶3} At his arraignment on January 3, 2008, appellant admitted the charges set
forth in the complaint. As memorialized in a Judgment Entry filed on January 4, 2008,
the trial court found that appellant was a delinquent child as defined by R.C. 2152.02
and ordered that the matter be continued to January 18, 2008, for disposition and to
determine appellant's sexual offender classification.
{¶4} Pursuant to a Judgment Entry filed on February 22, 2008, the trial court
committed appellant to the Ohio Department of Youth Services (DYS) for a minimum of
three years and a maximum to the age of twenty-one on count one (rape) and to a
minimum of two (2) years and a maximum to age twenty-one on count five (rape). The
trial court ordered these commitments to run consecutively. The trial court also
committed appellant to a minimum of three (3) years and a maximum to age twenty-one Tuscarawas County App. Case No. 2011AP050019 3
on counts two, six, nine and ten and ordered such commitments to run concurrently with
counts one and five. Finally, the trial court committed appellant for a minimum of six (6)
months and a maximum to age twenty-one on counts three, four, seven, eight, eleven
and twelve and ordered such commitments to run concurrently with counts one and five.
{¶5} The trial court, in its February 22, 2008, Judgment Entry, also ordered that
appellant be classified as a Tier III juvenile offender registrant.
{¶6} Appellant then appealed, raising the following assignments of error on
appeal:
{¶7} “I. THE TRIAL COURT ERRED WHEN IT CLASSIFIED KRISTOPHER W.
AS A JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT
DETERMINATION UPON HIS RELEASE FROM A SECURE FACILITY, IN VIOLATION
OF R.C. 2152.83(A)(1).
{¶8} “II. THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO
KRISTOPHER W. AS THE APPLICATION OF SENATE BILL TO KRISTOPHER W.
VIOLATES HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶9} “III. THE RETROACTIVE APPLICATION OF SENATE BILL 10 TO
KRISTOPHER W. VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED
STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF SECTION 28,
ARTICLE II OF THE OHIO CONSTITUTION.
{¶10} “IV. KRISTOPHER W. WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL. FOURTEENTH AMENDMENT TO THE Tuscarawas County App. Case No. 2011AP050019 4
UNITED STATES CONSTITUTION, SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.”
{¶11} Pursuant to an Opinion filed in In re Kristopher W., 5TH Dist. No.
2008AP030022, 2008-Ohio-6075, this Court held, in relevant part, as follows:
{¶12} “We recognize that subsection (A)(1) of [R.C. 2152.83] is worded
differently than subsection (B)(1). The General Assembly uses the word ‘shall’ in
subsection (A)(1) rather than the word ‘may.’ Thus, although a juvenile court has
discretion as to the type of disposition it makes, the court apparently does not have
discretion to determine when the delinquent child can be adjudicated a sexual predator.
If a child is committed to DYS, the legislature has decided that such a determination
must wait until the child's release. We recognize that courts must follow a statute's plain
language, regardless of the wisdom of the particular statutory provision.' Id at paragraph
8.
{¶13} “Based on the foregoing, we find that the trial court erred in classifying
appellant as a juvenile offender registrant when it did. Such determination must be
made upon appellant's release from a secure facility.” Id at paragraphs 17-18. We
further found that that the application of Senate Bill 10 to appellant did not violate his
right to due process of law as guaranteed by both the United States and Ohio
Constitutions and that the retroactive application of such Bill, which became effective
January 1, 2008, to him did not violate the ex post facto clause of the United States
Constitution and the retroactivity clause of Section 28, Article II of the Ohio Constitution.
{¶14} Pursuant to a Judgment Entry filed on December 30, 2008, the trial court
indicated that appellant “will not be classified as a Tier III sex offender as previously Tuscarawas County App. Case No. 2011AP050019 5
ordered by this Court.” The trial court released appellant from all reporting duties that
accompany such classification.
{¶15} Upon being advised that appellant was being released from the
Department of Youth Services on April 24, 2011, the trial court, as memorialized in a
Judgment Entry filed on March 29, 2011, set a hearing to review appellant’s
classification. The trial court, via a Judgment Entry filed on April 21, 2011, stated as
follows:
{¶16} “[t]he court…declines to change the previous classification and therefore
said Juvenile will be classified as a Tier III sex offender and subject to community
notification provisions.”
{¶17} Appellant appealed from the trial court’s April 21, 2011 Judgment Entry,
raising the following assignments of error:
{¶18} “I. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED WHEN IT
CONDUCTED A HEARING TO REVIEW KRISTOPHER W.’S JUVENILE SEX
OFFENDER CLASSIFICATION.
{¶19} “II. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED WHEN IT
APPLIED SENATE BILL 10 TO KRISTOPHER W. SECTION 28, ARTICLE II, OHIO
CONSTITUTION; STATE V. WILLIAMS, 129 OHIO (SIC) AT.3D 344, 2011-OHIO-3374,
APPLIED; R.C. 2151.01(B), R.C. 2152.01(A), (B); FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION; AND, ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION.”
{¶20} On November 23, 2011, appellant filed a Motion for Leave to File an
Amended Assignment of Error based on the Ohio Supreme Court’s October 20, 2011, Tuscarawas County App. Case No. 2011AP050019 6
decision in Cases Held for the Decision in State v. Williams -- N.E.2d --, 957 N.E.2d
289, 2011-Ohio-5348. This Court granted such motion and granted appellee leave until
December 16, 2011 to file a reply brief. Appellee subsequently filed a reply brief.
{¶21} For purposes of judicial economy, we shall address the assignments of
error out of sequence.
II
{¶22} Appellant, in his second assignment of error, argues that S.B. 10 was
unconstitutionally applied to him. We agree.
{¶23} In State v. Williams, 129 Ohio St.3d 344, 2011–Ohio–3374, 952 N.E.2d
1108, syllabus, the Ohio Supreme Court held that “2007 Am.Sub.S.B. No. 10, as
applied to defendants who committed sex offenses prior to its enactment, violates
Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly
from passing retroactive laws.”
{¶24} Appellant was alleged to have committed the offenses in this case
between January 1, 2006 through May 6, 2006 and June 15, 2007 through August 1,
2007.1 S.B. 10, a.k.a. the Adam Walsh Act (“the AWA”), was enacted on June 27, 2007,
and made effective on January 1, 2008. Accordingly, and as conceded by appellee,
pursuant to the Supreme Court's ruling in Williams, appellant was improperly
reclassified as a Tier III offender under S.B. 10.
{¶25} Appellant’s second assignment of error is, therefore, sustained.
1 We note that in at least one case reversed by the Williams case the offense occurred after July 1, 2007, nd but before January 1, 2008. See State v. Gresham, 2 Dist. No. 22766, 2009-Ohio-3305. As is stated above, S.B. 10 was enacted on June 27, 2007, and became effective January 1, 2008. Tuscarawas County App. Case No. 2011AP050019 7
I
{¶26} Appellant, in his first assignment of error, argues that the trial court erred
when it conducted a hearing to review appellant’s juvenile sex offender classification.
Appellant specifically argues that the trial court had no authority to conduct a review
hearing rather than an initial classification hearing in accordance with the mandate of
this Court. Appellant also contends that the trial court erred in conducting a review
hearing when appellant had not yet been given a valid juvenile offender sex
classification pursuant to R.C. 2152.83.
{¶27} Based on our disposition of appellant’s first assignment of error,
appellant’s second assignment of error is moot.2
2 We note that appellee, in its December 14, 2011, reply brief, indicated that the arguments made in previous briefs regarding the first assignment of error were moot. Tuscarawas County App. Case No. 2011AP050019 8
{¶28} Accordingly, the judgment of the Tuscarawas County Court of Common
Pleas, Juvenile Division is reversed and this matter is remanded for further proceedings.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
JUDGES
JAE/d1220 [Cite as In re K.W., 2012-Ohio-1179.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: K. W. : : : : : : JUDGMENT ENTRY : : : : CASE NO. 2011AP050019
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is
reversed and remanded to the trial court for further proceedings. Costs assessed to
appellee.
_________________________________