[Cite as In re R.H., 2016-Ohio-7379.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: R.H. : JUDGES: : Hon. Sheila G. Farmer, P.J. : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. : : : Case No. 2016CA00078 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Family Court Division, Case No. 2015JCR01594
JUDGMENT: Remanded
DATE OF JUDGMENT: October 17, 2016
APPEARANCES:
For Appellee For Appellant
JOHN D. FERRERO CHARYLYN BOHLAND Prosecuting Attorney 250 East Broad Street By: RENEE M. WATSON Suite 1400 Assistant Prosecutor Columbus, OH 43215 110 Central Plaza, South – Suite 510 Canton, OH 44702-0049 Stark County, Case No. 2016CA00078 2
Farmer, P.J.
{¶1} On December 15, 2015, appellant, R.H., age sixteen, pled true to one
count of rape in violation of R.C. 2907.02. A disposition and registration hearing was
held on March 1, 2016. By judgment entry filed March 2, 2015, the trial court remanded
appellant to the Multi-County Juvenile Attention Center pending transfer to the
Department of Youth Services for a minimum period of one year, but recommended
appellant be placed at Paint Creek, a staff secured community based correctional
facility. In a separate filing on same date, the trial court also classified appellant as a
Tier III juvenile offender registrant.
{¶2} In a judgment entry filed March 17, 2016, the trial court remanded
appellant to the Multi-County Juvenile Attention Center pending transfer to the
Department of Youth Services for a minimum of one year to a maximum of appellant
attaining the age of twenty-one, and ordered appellant be conveyed and delivered to
Indian River Juvenile Correctional Facility, a secured facility.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE JUVENILE COURT ERRED WHEN IT CLASSIFIED R.H. AS A
JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT
DETERMINATION UPON HIS RELEASE FROM THE SECURE FACILITY, IN
VIOLATION OF R.C. 2152.83(A)(1)." Stark County, Case No. 2016CA00078 3
II
{¶5} "THE JUVENILE COURT ERRED WHEN IT CLASSIFIED R.H. AS A
JUVENILE OFFENDER REGISTRANT BECAUSE R.H.'S STATUS AS A MANDATORY
REGISTRANT UNDER R.C. 2152.83(A) VIOLATES THE EQUAL PROTECTION
CLAUSES OF THE U.S. AND OHIO CONSTITUTIONS."
III
{¶6} "R.H. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION."
{¶7} Appellant claims the trial court erred in classifying him as a juvenile
offender registrant when he had yet to be released from a secured facility. We agree in
part.
{¶8} R.C. 2152.83 governs order classifying child as juvenile offender
registrant. Subsection (A)(1) states the following:
(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: Stark County, Case No. 2016CA00078 4
(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.
(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.
{¶9} During the disposition and registration hearing held on March 1, 2016, the
trial court ordered the following (March 1, 2016 T. at 14-15):
THE COURT: All right [R.] I am going to commit you to the
Department of Youth Services for a minimum period of one year. They
can keep you longer than that. I'm going to recommend that they
ah…ah…um house you at Paint Creek which is a staff secure facility and
it specializes in sex offender treatment. So hopefully you will get what you
need there. I am going to order you to complete sex offender treatment
while you are there. You are not to have any contact with the victim or
any children under the age of eighteen until this Order has been
modified.***Um as far as the Registration is concerned I feel that I cannot
in good conscience ah have you back in the community at this point Stark County, Case No. 2016CA00078 5
without ah community notifications. So I am going to register you as a
Tier 3 with community registration or community notification. Um and that
will…I need to go through this form with you to make sure that you
understand what the registration requires you to do. Now while you are in
DYS ah custody you will they will ah assist you with fulfilling your
registration obligation but when you are not in their custody then you will
have to do that with the assistance of your parents. And it's very important
that you follow these rules exactly. I'm going to give you a copy of the
rules before you go…um again DYS will help you at the beginning but ah
it's very important that you understand these rules.
{¶10} In its judgment entry filed March 17, 2016, the trial court stated the
following:
The juvenile was found to be delinquent and prior order in case
number 2015JCR01594 is hereby imposed. Said juvenile is COMMITTED
to the OHIO DEPARTMENT OF YOUTH SERVICES for a minimum of
ONE (1) YEAR and no more than said youth's attainment of the age of
twenty-one (21) years. Said acts which if committed by an adult would
constitute a felony, to wit: ONE (1) COUNT OF RAPE (F1), SECTION
2907.02A1A OF THE OHIO REVISED CODE.
*** Stark County, Case No. 2016CA00078 6
IT IS FURTHER ORDERED that said juvenile shall be REMANDED
to the Multi-County Juvenile Attention Center, a place of juvenile
detention, pending transfer to Department of Youth Services. That the
juvenile be detained for a period not to exceed ninety (90) days. Juvenile
has served a total of 22 days in detention.***
IT IS FURTHER ORDERED that a warrant be issued to the Sheriff
of Stark County to convey and deliver said juvenile to said place of
commitment to INDIAN RIVER JUVENILE CORRECTIONAL FACILITY,
MASSILLON, OHIO, as herein above provided as soon as such juvenile
can be accepted and received by said place of commitment and that due
return thereof be made to this Court.
{¶11} It is clear that the trial court assumed appellant would be transferred by
the Department of Youth Services to Paint Creek, a non-secured facility. In re Mudrick,
5th Dist. Stark No. 2007CA00038, 2007-Ohio-6800. However, the record on appeal
only demonstrates that appellant was conveyed to Indian River Juvenile Correctional
Facility, a secured facility. See Warrant to Convey filed March 17, 2016.
{¶12} Although some six and one-half months have passed, the record only
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[Cite as In re R.H., 2016-Ohio-7379.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: R.H. : JUDGES: : Hon. Sheila G. Farmer, P.J. : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. : : : Case No. 2016CA00078 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Family Court Division, Case No. 2015JCR01594
JUDGMENT: Remanded
DATE OF JUDGMENT: October 17, 2016
APPEARANCES:
For Appellee For Appellant
JOHN D. FERRERO CHARYLYN BOHLAND Prosecuting Attorney 250 East Broad Street By: RENEE M. WATSON Suite 1400 Assistant Prosecutor Columbus, OH 43215 110 Central Plaza, South – Suite 510 Canton, OH 44702-0049 Stark County, Case No. 2016CA00078 2
Farmer, P.J.
{¶1} On December 15, 2015, appellant, R.H., age sixteen, pled true to one
count of rape in violation of R.C. 2907.02. A disposition and registration hearing was
held on March 1, 2016. By judgment entry filed March 2, 2015, the trial court remanded
appellant to the Multi-County Juvenile Attention Center pending transfer to the
Department of Youth Services for a minimum period of one year, but recommended
appellant be placed at Paint Creek, a staff secured community based correctional
facility. In a separate filing on same date, the trial court also classified appellant as a
Tier III juvenile offender registrant.
{¶2} In a judgment entry filed March 17, 2016, the trial court remanded
appellant to the Multi-County Juvenile Attention Center pending transfer to the
Department of Youth Services for a minimum of one year to a maximum of appellant
attaining the age of twenty-one, and ordered appellant be conveyed and delivered to
Indian River Juvenile Correctional Facility, a secured facility.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE JUVENILE COURT ERRED WHEN IT CLASSIFIED R.H. AS A
JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT
DETERMINATION UPON HIS RELEASE FROM THE SECURE FACILITY, IN
VIOLATION OF R.C. 2152.83(A)(1)." Stark County, Case No. 2016CA00078 3
II
{¶5} "THE JUVENILE COURT ERRED WHEN IT CLASSIFIED R.H. AS A
JUVENILE OFFENDER REGISTRANT BECAUSE R.H.'S STATUS AS A MANDATORY
REGISTRANT UNDER R.C. 2152.83(A) VIOLATES THE EQUAL PROTECTION
CLAUSES OF THE U.S. AND OHIO CONSTITUTIONS."
III
{¶6} "R.H. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION."
{¶7} Appellant claims the trial court erred in classifying him as a juvenile
offender registrant when he had yet to be released from a secured facility. We agree in
part.
{¶8} R.C. 2152.83 governs order classifying child as juvenile offender
registrant. Subsection (A)(1) states the following:
(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: Stark County, Case No. 2016CA00078 4
(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.
(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.
{¶9} During the disposition and registration hearing held on March 1, 2016, the
trial court ordered the following (March 1, 2016 T. at 14-15):
THE COURT: All right [R.] I am going to commit you to the
Department of Youth Services for a minimum period of one year. They
can keep you longer than that. I'm going to recommend that they
ah…ah…um house you at Paint Creek which is a staff secure facility and
it specializes in sex offender treatment. So hopefully you will get what you
need there. I am going to order you to complete sex offender treatment
while you are there. You are not to have any contact with the victim or
any children under the age of eighteen until this Order has been
modified.***Um as far as the Registration is concerned I feel that I cannot
in good conscience ah have you back in the community at this point Stark County, Case No. 2016CA00078 5
without ah community notifications. So I am going to register you as a
Tier 3 with community registration or community notification. Um and that
will…I need to go through this form with you to make sure that you
understand what the registration requires you to do. Now while you are in
DYS ah custody you will they will ah assist you with fulfilling your
registration obligation but when you are not in their custody then you will
have to do that with the assistance of your parents. And it's very important
that you follow these rules exactly. I'm going to give you a copy of the
rules before you go…um again DYS will help you at the beginning but ah
it's very important that you understand these rules.
{¶10} In its judgment entry filed March 17, 2016, the trial court stated the
following:
The juvenile was found to be delinquent and prior order in case
number 2015JCR01594 is hereby imposed. Said juvenile is COMMITTED
to the OHIO DEPARTMENT OF YOUTH SERVICES for a minimum of
ONE (1) YEAR and no more than said youth's attainment of the age of
twenty-one (21) years. Said acts which if committed by an adult would
constitute a felony, to wit: ONE (1) COUNT OF RAPE (F1), SECTION
2907.02A1A OF THE OHIO REVISED CODE.
*** Stark County, Case No. 2016CA00078 6
IT IS FURTHER ORDERED that said juvenile shall be REMANDED
to the Multi-County Juvenile Attention Center, a place of juvenile
detention, pending transfer to Department of Youth Services. That the
juvenile be detained for a period not to exceed ninety (90) days. Juvenile
has served a total of 22 days in detention.***
IT IS FURTHER ORDERED that a warrant be issued to the Sheriff
of Stark County to convey and deliver said juvenile to said place of
commitment to INDIAN RIVER JUVENILE CORRECTIONAL FACILITY,
MASSILLON, OHIO, as herein above provided as soon as such juvenile
can be accepted and received by said place of commitment and that due
return thereof be made to this Court.
{¶11} It is clear that the trial court assumed appellant would be transferred by
the Department of Youth Services to Paint Creek, a non-secured facility. In re Mudrick,
5th Dist. Stark No. 2007CA00038, 2007-Ohio-6800. However, the record on appeal
only demonstrates that appellant was conveyed to Indian River Juvenile Correctional
Facility, a secured facility. See Warrant to Convey filed March 17, 2016.
{¶12} Although some six and one-half months have passed, the record only
shows that appellant was placed in a secured facility and the classification of appellant
as a juvenile registrant may have been premature.
{¶13} The matter is remanded to the trial court to determine where appellant is
committed. If appellant remains in a secured facility, the juvenile offender registrant Stark County, Case No. 2016CA00078 7
classification is vacated; if appellant is in a staff secured/non-secured facility, the
classification stands.
{¶14} Assignment of Error I is remanded for further determination.
{¶15} Appellant claims R.C. 2152.83(A) violates the Equal Protection Clause of
the United States and Ohio Constitutions. Pursuant to our opinion in In Re: D.D., 5th
Dist. Stark No. 2015CA0043, 2015-Ohio-3999, this assignment of error is denied. See
also In re M.R., 7th Dist. Jefferson No. 13 JE 30, 2014-Ohio-2623, aff'd in part and
dismissed in part, ___ Ohio St.3d ___, 2016-Ohio-5451.
{¶16} Appellant claims he was denied the effective assistance of counsel.
Based upon our decision in Assignment of Error I, we find this assignment to be moot.
{¶17} The judgment of the Court of Common Pleas of Stark County, Ohio,
Family Court Division is hereby remanded.
By Farmer, P.J.
Gwin, J. and
Wise, J. concur.
SGF/sg 106