In re L.N.

2017 Ohio 4471

• Court: Ohio Court of Appeals
• Decided: June 23, 2017
• Docket: WD-16-043
• Status: Published

Opinion

[Cite as In re L.N., 2017-Ohio-4471.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

In re L.N. Court of Appeals No. WD-16-043

Trial Court No. 2014JA0881

DECISION AND JUDGMENT

Decided: June 23, 2017

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Paul A. Dobson, Wood County Prosecuting Attorney, Charles Bergman, Chief Assistant Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Jeffrey P. Nunnari, for appellant.

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Wood County Court of Common

Pleas, Juvenile Division, that classified appellant, “L.N.,” as a juvenile sex offense

registrant. For the reasons set forth below, the judgment of the trial court is affirmed. Facts and Procedural History

{¶ 2} On September 19, 2014, a complaint was filed with the Wood County

Juvenile Court, case No. 2014JA0881, alleging that L.N., then 15 years old, had unlawful

sexual contact with his four-year-old sister. According to the journal entry, journalized

on October 29, 2014, the court adjudicated L.N. delinquent to the offense of one count of

gross sexual imposition, in violation of R.C. 2907.05(A)(4), a third-degree felony

delinquency. By agreement of the parties, the court then proceeded immediately to

disposition.

{¶ 3} The court ordered that L.N. be committed to the legal custody of the Ohio

Department of Youth Services (“ODYS”) for institutionalization in a secure facility for

an indefinite term consisting of a minimum of six months to a maximum of the age of 21

years of age. L.N.’s commitment was suspended on the condition that he complete

treatment and aftercare program at the Juvenile Residential Center of Northwest Ohio

(“JRCNO”). The court deferred hearing the matter of whether L.N. should be classified

as a sexual offender registrant until his release.

{¶ 4} On April 7, 2015, while he was receiving treatment at JRCNO, L.N. was

charged in a separate case of gross sexual imposition. (Wood County case No.

2015JA0319). The 2015 case involved incidents that occurred when L.N. was 13 years

old, with different victims than the 2014 case.

{¶ 5} Based upon the new charge, the juvenile court, by order dated June 23, 2015,

terminated its previous “initial dispositional decision” that had placed L.N. at JRCNO. It

2. then committed L.N. to ODYS “immediately.” In other words, L.N. was transferred from

JRCNO, where he was receiving treatment in the 2014 case, to ODYS, where he was

ordered sent in the 2015 case. The court specifically ordered, “the Court shall be notified

prior to [L.N.’s] release from DYS in order for a sexual classification hearing to be held

(in this case.)”

{¶ 6} L.N.’s sexual offender registration and tier classification hearing was

originally set for May 6, 2016, but was twice delayed when his commitment to ODYS

was extended for fighting. The classification hearing eventually occurred on July 18 and

August 4, 2016. According to the August 4, 2016 journal entry, the court classified L.N.

as a Tier II offender.

{¶ 7} Through his appointed, appellate counsel, L.N. appealed. He asserts one

assignment of error:

Assignment of Error: The juvenile court committed plain error by

conducting a juvenile sex offender classification and registration hearing

and classifying the juvenile as a Tier II sexual offender registrant, as the

juvenile had been released from the secure facility to which he was

confined as part of his original disposition more than a year before his

classification hearing.

3. Law and Analysis

{¶ 8} L.N. asserts that the trial court erred in holding his sex offender registration

hearing on August 4, 2016, over a year after his June 15, 2015 “release” from JRCNO.

L.N. concedes that because no objection was raised at the trial level as to the timeliness

of the classification hearing, our review is limited to a plain error analysis.

{¶ 9} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.” Plain

error review is available in juvenile delinquency proceedings. See, e.g., In re Tabler, 4th

Dist. Lawrence No. 06CA30, 2007-Ohio-411, ¶ 15. An appellate court will take notice of

plain error with utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. Before we reverse the trial court for plain error, we must

find that the error is clearly apparent from the face of the record and is prejudicial to the

appellant. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16.

{¶ 10} In order to determine whether the court committed plain error in classifying

L.N. as a juvenile offender registrant, we look to the “Juvenile Sex Offender Registration

and Notification Law.” In particular, R.C. 2152.83(B)(1) provides:

The court that adjudicates a child a delinquent child, on the judge’s

own motion, may conduct at the time of disposition of the child or, if the

court commits the child for the delinquent act to the custody of a secure

4. facility, may conduct at the time of the child’s release from the secure

facility, a hearing for the purposes described in division (B)(2) of this

section if all of the following apply:

(a) The act for which the child is 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.

(b) The child was fourteen or fifteen 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. (Emphasis added.)

{¶ 11} Thus, a juvenile court has discretion as to whether to hold a sex offender

classification hearing for juveniles who are 14 or 15 years of age and commit a sexually

oriented offense, but do not have a prior sexually oriented offense adjudication on their

record. In re B.O., 6th Dist. Lucas No. L-12-1021, 2013-Ohio-2246, ¶ 7.

{¶ 12} If the court chooses to conduct a sex offender classification hearing, it has

discretion as to whether to classify the juvenile as a sex offender and, if so, at what tier

the juvenile will be classified. The criteria for making such a determination is set forth in

R.C. 2152.83(D).

5. {¶ 13} L.N. was 14 years old at the time he admitted to committing the sex offense

in this case, and he had no prior adjudication for a sexually oriented offense. L.N. does

not challenge the court’s decision to hold a classification hearing or to designate him as a

Tier II offender. Instead, he challenges the timing of the hearing. L.N. claims that the

classification hearing should have been held on either October 23, 2014, when he was

ordered to JRCNO, or June 18, 2015, when his “prior commitment to JRCNO * * *

terminated.” He argues that “[t]he statute does not contemplate deferring the hearing

until all dispositional orders confining a child to separate secure facilities for separate,

unrelated acts, expire.”

{¶ 14} The state counters that the juvenile court, in its June 23, 2015 dispositional

order, specifically retained subject-matter jurisdiction to conduct a sex offender

classification hearing upon L.N.’s release from a secure facility, which occurred on

August 4, 2016. It cites a series of cases for the proposition that jurisdiction of the

juvenile court is properly obtained at the time of the offense, and retained thereafter. See,

e.g., In re M.R., 6th Dist. Wood No. WD-13-089, 2014-Ohio-3758, ¶ 19. The state

argues that, “this is not one of those rare instances where the juvenile was released from a

secure facility, and a juvenile sexual classification hearing was held a significant time

later. * * * Here, it occurred at the time of L.N.’s release from a secured facility with

[ODYS].”

{¶ 15} Indeed, there are a number of cases in which a juvenile sex offender was

actually released from a secure facility and the classification hearing was held thereafter.

6. In those cases, whether the court retained jurisdiction to conduct a postrelease hearing

turned, at least in part, on the length of time that had elapsed between the juvenile’s

release and the subsequent hearing.

{¶ 16} For example, in In re B.W., 2d Dist. Darke No. 1702, 2007-Ohio-2096, the

juvenile sex offender’s classification hearing was “a little more than two months” after

his release from ODYS. The court of appeals found that the delay was not

“unreasonable.” It expressly found that the trial court retained jurisdiction to classify the

juvenile. It opined, “[c]learly, the legislature did not intend to mandate a classification

simultaneous with release, but merely within a reasonable time given docket constraints

and appropriate time for evaluations appurtenant to classification. Since the trial court

had jurisdiction to classify B.W., his first assignment of error is overruled.” Id. at ¶ 14.

See also In re B.O., 6th Dist. Lucas No. L-12-1021, 2013-Ohio-2246, ¶ 7 (Juvenile court

properly conducted appellant’s sex offender registration hearing over a month after it had

released the juvenile from DYS). Likewise, in In re Smith, 3d Dist. Allen No. 1-07-58,

2008-Ohio-3224, the court of appeals found that a classification hearing held seven

months after the juvenile’s release from a secure facility was reasonable and comported

with R.C. 2152.83. Id. at ¶ 14, 18, rev’d on other grounds, In re D.J.S., 130 Ohio St.3d

257, 2011-Ohio-5342, 957 N.E.2d 291 (Reversing appellate court’s conclusion that 2007

Am.Sub.S.B. No. 10 did not violate prohibition against retroactive laws in juvenile sex

offender classification proceeding). But see In re McCallister, 5th Dist. Stark No.

2006CA00073, 2006-Ohio-5554, ¶ 9-10 (Finding that the trial court’s jurisdiction as to

7. classification terminated 13 months after the juvenile sex offender’s release from a secure

facility).

{¶ 17} The cases cited above suggest that a trial court may, under certain

circumstances, reasonably delay a classification hearing until after a juvenile’s release

from a secure facility without running afoul of R.C. 2152.83(B)(1).

{¶ 18} We agree with the state, however, that the situation in the instant case is

different than those cases because L.N. was not “released” from JRCNO but rather

transferred to a different, secure facility, in a different matter. Indeed, the trial court was

careful to note at the time of transfer that “[a]t no time did [L.N.] leave a secure facility.”

{¶ 19} We need not, and indeed cannot, decide whether the trial court’s decision

to hold L.N.’s classification hearing when it did was reasonable, or not, for the reason

that the record before us is incomplete.

{¶ 20} “The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing error

by reference to matters in the record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199, 400 N.E.2d 384 (1989), citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d

1355 (1978).

{¶ 21} Likewise, App.R. 9(B)(3) requires that, “the appellant shall order the

transcript in writing and shall file a copy of the transcript order with the clerk of the trial

court.” In cases where portions of the transcript that are necessary for the resolution of

assigned errors are omitted from the record, “the reviewing court has nothing to pass

8. upon and thus, as to those assigned errors, the court has no choice but to presume the

validity of the lower court’s proceedings, and affirm.” Knapp at 199.

{¶ 22} Because L.N. did not request the transcript in his praecipe or otherwise

provide this court with a transcript of the juvenile court’s proceedings, most notably the

classification hearing held on July 18 and August 4, 2016, we must presume that the

court’s rulings, with respect to his assignment of error, were correct. State v. Vascik, 6th

Dist. Lucas No. L-10-1130, 2011-Ohio-975, ¶ 18-19, citing Knapp. See also

Citifinancial, Inc. v. Budzik, 9th Dist. Lorain No. 02CA008155, 2003-Ohio-4149

(Transcript necessary for meaningful review of the trial court’s rulings on evidentiary

matters.); and State v. Pirpich, 12th Dist. Warren No. CA2006-07-083, 2007-Ohio-6745.

(Without a transcript of the suppression hearing, an appellate court must presume the trial

court correctly denied a motion to suppress.)

{¶ 23} Before we reverse a judgment on plain error grounds, we must find that the

error is clearly apparent from the face of the record and is prejudicial to the appellant.

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. Because the

critical portions of the record are not before us, we cannot find that the trial court

committed plain error in holding L.N.’s classification hearing on August 4, 2016.

Accordingly, L.N.’s assignment of error is not well-taken.

9. {¶ 24} The judgment of the Wood County Court of Common Pleas, Juvenile

Division, is affirmed. Costs of this appeal are assessed to appellant pursuant to App.R.

24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE

10.