In re M.W.

2019 Ohio 4564

Opinion

[Cite as In re M.W., 2019-Ohio-4564.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: M.W. : JUDGES: : Hon. Patricia A. Delaney, P.J. : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. : : : Case No. 2019 CA 00020 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Juvenile Division, Case No. A2017-0751

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: November 4, 2019

APPEARANCES:

For Plaintiff-Appellant M.W. For Defendant-Appellee State of Ohio

PAUL GIORGIANNI WILLIAM C. HAYES Giorgianni Law LLC Licking County Prosecutor 1538 Arlington Avenue Columbus, Ohio 43212-2710 By: MANDY R. DELEEUW Assistant Prosecuting Attorney BRADLEY P. KOFFEL 20 S. Second Street, Fourth Floor The Koffel Law Firm Newark, Ohio 43055 1801 Watermark Drive, Suite 350 Columbus, Ohio 43215 Licking County, Case No. 2019 CA 00020 2

Baldwin, J.

{¶1} Appellant M.W. appeals from the March 25, 2019 Judgment Entry of the

Licking County Court of Common Pleas, Juvenile Division. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts leading to this appeal are as follows.

{¶3} In early 2017, appellant, then age seventeen, briefly dated a fifteen-year-

old female (hereinafter “female victim” or “F.V.”). On one occasion during the time frame

of February-March 2017, F.V. performed oral sex on appellant while at his house.

Appellant recorded some of this conduct in video format on his iPhone. At some point

afterward, while the two were still dating, appellant told F.V. that he had sent a “buddy” a

video of the aforementioned oral sex act. See Tr. at 25-27 (adjudication testimony of F.V.).

{¶4} In October 2017, about seven months after appellant and F.V. broke up,

two of appellant's male classmates, C.H. and C.P., got into an argument during a

vocational class. One of these males, C.H., had also dated F.V. for a couple of months in

the fall of 2017. Appellant intervened in the argument by indicating he had something on

his phone which would make C.H. angry. After C.H. left the room, appellant showed a

portion of a video on his phone to C.P. and a bystander classmate, L.W. This video portion

included images of an erect penis and the face of F.V., albeit without showing physical

contact.

{¶5} School officials then came into the class to investigate. Appellant thereupon

gave the phone to another male juvenile, R.S., and asked him to delete certain recorded

images. Appellant indicated there was a video of F.V. performing oral sex on appellant Licking County, Case No. 2019 CA 00020 3

and told him to delete it. R.S. instead left the phone on a bookshelf, and one of the

school's administrators secured it.

{¶6} On October 20, 2017, appellant was arrested. In the meantime, the phone

was provided to law enforcement officials.

{¶7} On October 23, 2017, a deputy from the Licking County Sheriff's Office filed

a complaint in the juvenile division alleging that appellant was a delinquent child. The

complaint listed the following counts:

{¶8} Count 1: Pandering sexually-oriented matter involving a minor, R.C.

2907.322(A)(1);

{¶9} Count 2: Disseminating matter harmful to a juvenile, R.C. 2907.31(A)(2);

Count 3: Attempted tampering with evidence, R.C. 2921.12(A)(1) and R.C. 2923.02(A).

{¶10} The juvenile court conducted an initial hearing on October 23, 2017.

Appellant remained in detention.

{¶11} On November 3, 2017, by agreement with the State of Ohio, the juvenile

court released appellant to reside with his father, under house arrest.

{¶12} On January 8, 2018, the court conducted a Juv.R. 29 adjudicatory hearing.

Via a judgment entry issued that day, appellant was adjudicated delinquent with respect

to each of the above three counts.

{¶13} On March 5, 2018, the court conducted a dispositional hearing and entered

a final judgment. Appellant was thereby committed to the Department of Youth Services

(“DYS”) for a minimum period of two years, as follows: twelve months on the pandering

count, six months on the dissemination count, and six months on the tampering count, all

consecutive to each other. The court also declared appellant a Tier II juvenile sex Licking County, Case No. 2019 CA 00020 4

offender, with requirements for registration for twenty years (R.C. 2950.07(B)(2) ) and an

in-person residence verification every 180 days (R.C. 2950.06(B)(2) ).

{¶14} On March 14, 2018, appellant filed a notice of appeal. Appellant raised the

following assignments of error on appeal:

{¶15} “I. THE ADJUDICATION OF DELINQUENCY ON COUNT 1 IS NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST

WEIGHT OF THE EVIDENCE.”

{¶16} “II. THE ADJUDICATION OF DELINQUENCY ON COUNT 2 IS NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST

{¶17} “III. IF APPELLANT'S EXHIBITION OF THE VIDEO TO C.P. AND L.W.

WAS ‘HARMFUL TO JUVENILES’ WITHIN THE MEANING OF R.C. 2907.31(A)(2),

THEN THAT STATUTE IS UNCONSTITUTIONALLY VAGUE AND IRRATIONAL AS

APPLIED TO THE FACTS OF THIS CASE.”

{¶18} “IV. DESPITE EVID.R. 1002, THE JUVENILE COURT ALLOWED INTO

EVIDENCE AND RELIED UPON STATEMENTS DESCRIBING THE CONTENT OF THE

VIDEO.”

{¶19} “V. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

BY HIS COUNSEL'S FAILURE TO OBJECT, BASED UPON EVID.R. 1002, TO THE

STATEMENTS DESCRIBING THE CONTENT OF THE VIDEO."

{¶20} “VI. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

IN THE AGGREGATE. Licking County, Case No. 2019 CA 00020 5

{¶21} “VII. THE DISPOSITIONAL ORDER CONSTITUTES AN ABUSE OF

DISCRETION.”

{¶22} Pursuant to an Opinion filed on December 21, 2018 in In re M.W., 5th Dist.

Licking No. 2018 CA 0021, 2018-Ohio-5227, 2018 WL 6787946, this Court affirmed the

judgment of the trial court in part and reversed and remanded the judgment in part. This

Court sustained appellant’s second assignment of error and found appellant’s third

assignment of error to be moot. We further found appellant’s seventh assignment of error

to be premature. This Court remanded the matter for further dispositional proceedings in

accordance with our opinion and the law. This Court overruled appellant’s Motion for

Reconsideration and the Ohio Supreme Court declined to accept the appeal for review.

See In re M.W., 156 Ohio St.3d 1465, 2019-Ohio-2892.

{¶23} On March 25, 2019, the trial court conducted another dispositional hearing.

At the conclusion of the hearing, the trial court stated that it was going to “reaffirm its prior

classification of appellant as a Tier II juvenile offender registrant and that it would review

such classification in six months. Transcript at 18. The trial court also placed appellant on

non-reporting probation for a period of six months. The trial court’s decision was

memorialized in a Judgment Entry filed on March 25, 2019.

{¶24} Appellant now raises the following assignments of error on appeal:

{¶25} “I. THE JUVENILE COURT (SIC) CLASSIFIED APPELLANT AS A TIER II

JUVENILE OFFENDER REGISTRANT RATHER THAN A TIER I JUVENILE OFFENDER

REGISTRANT.” Licking County, Case No. 2019 CA 00020 6

{¶26} “II. AS APPLIED TO THE FACTS OF THIS CASE, THE MANDATORY

ASPECT OF OHIO’S JUVENILE OFFENDER REGISTRATION REGIME IS “CRUEL

AND UNUSUAL” WITHIN THE MEANING OF THE EIGHTH AMENDMENT.”

{¶27} “III. AS APPLIED TO THE FACTS OF THIS CASE, THE MANDATORY

ASPECT OF OHIO’S JUVENILE OFFENDER REGISTRATION REGIME IS “CRUEL

AND UNUSUAL” WITHIN THE MEANING OF ARTICLE I, SECTION 9 OF THE OHIO

CONSTITUTION.”

{¶28} “IV. AS APPLIED TO THE FACTS OF THIS CASE, THE MANDATORY

ASPECT OF OHIO’S JUVENILE OFFENDER REGISTRATION REGIME VIOLATES

THE SUBSTANTIVE DUE PROCESS COMPONENT OF THE FOURTEENTH

AMENDMENT.”

I

{¶29} Appellant, in his first assignment of error, argues that the trial court abused

its discretion by classifying him as a Tier II juvenile offender registrant rather than a Tier

I juvenile offender registrant.

{¶30} R.C. 2152.83 states, in relevant part, as follows:

{¶31} “(A)(1) 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: Licking County, Case No. 2019 CA 00020 7

{¶32} (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.

{¶33} (b) The child was sixteen or seventeen years of age at the time of

committing the offense.

{¶34} (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.”

{¶35} Appellant does not dispute that pursuant to such section, this case meets

the requirement for juvenile offender registration. A juvenile court may classify a juvenile

as a juvenile sex offender “only after first conducting a hearing pursuant to R.C.

2152.83(B)(2) to determine whether the delinquent child should be so classified.”

(Emphasis added.) In re I.A., 140 Ohio St.3d 203, 2014–Ohio–3155, 16 N.E.3d 653, ¶ 6.

As part of the hearing pursuant to R.C. 2152.83(B)(2), a juvenile court must consider

numerous statutory factors — including information about the offender, the victim, the

nature of the crime, and other factors — before determining whether the juvenile should

be subject to a juvenile sex offender classification. Id., citing R.C. 2152.83(D). However,

the decision whether to even hold the hearing is at the judge's discretion, pursuant to R.C.

2152.83(B)(1). Id.

{¶36} “If the judge determines that it is appropriate to impose juvenile-offender-

registrant status, the judge must conduct a tier-classification hearing to determine

whether the child should be classified as a Tier I, II, or III sex offender.” In re D.S., 146 Licking County, Case No. 2019 CA 00020 8

Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, at ¶ 14, citing R.C. 2152.83(C) and

R.C. 2152.831. “Which tier such an offender is placed in rests within the juvenile court's

discretion.” In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 20.

{¶37} With respect to a juvenile sex offender designation, R.C. 2152.83(D)

mandates that: In making a decision under division (B) of this section as to whether a

delinquent child should be classified a juvenile offender registrant, a judge shall consider

all relevant factors, including, but not limited to, all of the following:

{¶38} (1) The nature of the sexually oriented offense or the child-victim oriented

offense committed by the child;

{¶39} (2) Whether the child has shown any genuine remorse or compunction for

the offense;

{¶40} (3) The public interest and safety;

{¶41} (4) The factors set forth in division (K) of section 2950.11 of the Revised

Code, provided that references in the factors as set forth in that division to “the offender”

shall be construed for purposes of this division to be references to “the delinquent child;”

{¶42} (5) The factors set forth in divisions (B) and (C) of section 2929.12 of the

Revised Code as those factors apply regarding the delinquent child, the offense, and the

victim;

{¶43} (6) The results of any treatment provided to the child and of any follow-up

professional assessment of the child.

{¶44} The factors set forth in R.C. 2950.11(K) include:

{¶45} (1) The offender's age; Licking County, Case No. 2019 CA 00020 9

{¶46} (2) The offender's prior criminal or delinquency record regarding all

offenses, including, but not limited to, all sexually oriented offenses or child-victim

oriented offenses;

{¶47} (3) The age of the victim of the sexually oriented offense or child-victim

oriented offense the offender committed;

{¶48} (4) Whether the sexually oriented offense or child-victim oriented offense

the offender committed involved multiple victims;

{¶49} (5) Whether the offender used drugs or alcohol to impair the victim of the

sexually oriented offense or child-victim oriented offense the offender committed or to

prevent the victim from resisting;

{¶50} (6) If the offender previously has been convicted of, pleaded guilty to, or

been adjudicated a delinquent child for committing an act that if committed by an adult

would be a criminal offense, whether the offender completed any sentence or

dispositional order imposed for the prior offense or act and, if the prior offense or act was

a sexually oriented offense or a child-victim oriented offense, whether the offender or

delinquent child participated in available programs for sex offenders or child-victim

offenders;

{¶51} (7) Any mental illness or mental disability of the offender;

{¶52} (8) The nature of the offender's sexual conduct, sexual contact, or

interaction in a sexual context with the victim of the sexually oriented offense the offender

committed or the nature of the offender's interaction in a sexual context with the victim of

the child-victim oriented offense the offender committed, whichever is applicable, and Licking County, Case No. 2019 CA 00020 10

whether the sexual conduct, sexual contact, or interaction in a sexual context was part of

a demonstrated pattern of abuse;

{¶53} (9) Whether the offender, during the commission of the sexually oriented

offense or child-victim oriented offense the offender committed, displayed cruelty or made

one or more threats of cruelty;

{¶54} (10) Any additional behavioral characteristics that contribute to the

offender's conduct.

{¶55} The factors under R.C. 2929.12(B) and (C) involve considerations of

whether the offender's conduct was “more serious than conduct normally constituting the

offense,” or “less serious than conduct normally constituting the offense * * *.”

{¶56} A juvenile court is awarded broad discretion in classifying an offender as a

Tier I, Tier II, or Tier III juvenile sex offender. See In re K.D.H., 12th Dist. Butler No.

CA2012-09-188, 2013-Ohio-2636, ¶ 8, citing In re C.P., 131 Ohio St.3d 513, 2012-Ohio-

1446, 967 N.E.2d 729, at ¶ 20. The term “abuse of discretion” connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶57} In support of his argument that the juvenile court abused its discretion in

classifying him as a Tier II juvenile offender registrant rather than a Tier I juvenile offender

registrant, appellant argues that the trial court did not give any reason for choosing Tier

II over Tier I. Appellant also notes that the only person recommending Tier II classification

was a probation officer who was a court employee and that both the court-appointed Licking County, Case No. 2019 CA 00020 11

psychologist and psychologist retained by appellant “opine[d] that the risk of offending is

low and that juvenile offender registration is unlikely to provide any benefit.”

{¶58} We note that the trial court, in the case sub judice, in classifying appellant,

did not make the findings necessary to classify the youth as a Tier II juvenile sex offender

registrant as required by R.C. 2152.83. Neither in its Judgment Entry nor on the record

did the trial court make any factual findings. We find that in order to conduct a meaningful

review of the trial court’s decision to classify appellant as a Tier II juvenile offender

registrant, we must be able to determine that the trial court considered all applicable

statutory factors.

{¶59} We conclude that the record does not contain a sufficient rationale to permit

us to perform meaningful appellate review of the classification under an abuse-of-

discretion standard.

{¶60} We therefore sustain appellant’s first assignment of error, reverse the

dispositional order of the trial court, and remand the matter to the juvenile court for re-

consideration of the juvenile-offender registrant classification, for consideration of the

statutory factors sufficient to permit us to review the classification for an abuse of

discretion.

{¶61} Based on our disposition of appellant’s first assignment of error, the

remaining assignments of error are moot. Licking County, Case No. 2019 CA 00020 12

{¶62} Accordingly, the judgment of the Licking County Court of Common Pleas,

Juvenile Division, is reversed and this matter is remanded for further proceedings

consistent with this Opinion.

By: Baldwin, J.

Delaney, P.J. and

Wise, Earle, J. concur.