In re T.U.

2016 Ohio 7104

• Court: Ohio Court of Appeals
• Decided: September 30, 2016
• Docket: 26942
• Status: Published

Opinion

[Cite as In re T.U., 2016-Ohio-7104.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: T.U. : : : C.A. CASE NO. 26942 : : T.C. NO. JC-2013-0615 : : (Civil appeal from Common Pleas : Court, Juvenile Division) : : ...........

OPINION

Rendered on the ___30th___ day of _____September_____, 2016.

...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CHARLYN BOHLAND, Atty. Reg. No. 0088080, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

.............

DONOVAN, P.J.

{¶ 1} This matter is before the Court on the Notice of Appeal of T.U., filed

December 7, 2015. T.U. appeals from the November 10, 2015 “AMENDED JUDGE’S

FINAL APPEALABLE ORDER,” which provides in part that it “is being amended to

reflect juvenile offender classification.” In the order, the juvenile court ordered T.U.

“to register as a TIER III JUVENILE SEX OFFENDER/CHILD VICTIM OFFENDER -2-

REGISTRANT.”1 We hereby affirm the judgment of the trial court.

{¶ 2} The record reflects that on March 14, 2012, T.U., whose date of birth is

December 8, 1994, was adjudicated delinquent in the Shelby County Court of Common

Pleas, Juvenile Division, on three counts of illegal use of a minor in nudity-oriented

material, in violation of R.C. 2907.323(A)(3). On June 7, 2012, the matter came before

the Magistrate in the Montgomery County Court of Common Pleas, Juvenile Division,

upon an Order of Transfer from Shelby County Juvenile Court, for disposition; T.U. was

committed to the Department of Youth Services (“DYS”) for a minimum period of six

months and a maximum period not to exceed his 21st birthday, which was suspended,

conditioned upon his compliance with “all rules and regulations of probation and with all

local, state, and federal laws.”.

{¶ 3} On January 9, 2013, T.U. was again adjudicated delinquent by the Shelby

County Court of Common Pleas, Juvenile Division, on one count of attempted kidnapping

for a sexual purpose, in violation of R.C. 2905.01(A)(4). The matter was again

transferred to the Juvenile Court of Montgomery County on January 26, 2013, for

disposition. On February 14, 2013, a “Magistrate’s Decision and Judge’s Order of

Disposition and Notice of Duties to Register as a Tier III Juvenile Sex Offender/Child

Victim Offender” was issued which provides in part as follows:

This case came before Magistrate Todd Calaway on February 12,

2013, regarding determination of disposition; and the Court, being fully

advised in the premises, finds that [T.U.] is properly before the court; and

A Tier III sex offender/child-victim offender means in part a sex offender who is convicted 1

of a violation of R.C. 2905.01(A)(4) or any attempt to commit such a violation. R.C. 2905.01(G)(1)(e),(i). -3-

that an order was entered herein on or about January 9, 2013 in Shelby

County Juvenile Court, whereby the child was adjudged delinquent for an

act of Kidnapping, contrary to Section 2905.01(A)(4) of the Ohio Revised

Code, a felony of the first degree, 2 and said matter was continued for

determination of disposition.

***

The court finding further that the child is a delinquent by reason of

having committed an act which if committed by an adult would constitute a

felony of the first degree; and further that the child could benefit from being

committed to the legal custody of the Department of Youth Services [“DYS”]

for care and rehabilitation and that said commitment is the least restrictive

form of treatment which is appropriate.

It appearing to be in the child’s best interests, and it appearing further

that the child is a suitable person to be so committed, it is therefore ordered

that the child be and hereby is committed to the legal custody of [DYS] for

Institutionalization (in a secure facility) for a minimum period of twelve (12)

months and a maximum period not to exceed the child’s attainment of the

age of twenty-one (21) years. * * *

It is further ordered that the child is to register as a TIER III

JUVENILE SEX OFFENDER/CHILD VICTIM OFFENDER REGISTRANT,

2 The record reflects that T.U. admitted to an amended charge of attempted kidnapping. -4-

(not a Public Registry Qualified Offender Registrant, but is subject to

community notification provisions).

The Court finds that the following relevant factors were contributing

to the delinquent child’s conduct: 1) Juvenile’s age; 2) prior sex related

offenses; 3) age of victim; 4) multiple victims; and 5) mental illness or

disability of the juvenile.

Further, the Court finds that pursuant to Chapters 2152 and 2950 of

the Ohio Revised Code, the delinquent child committed a sexually oriented

offense as defined by the Ohio Revised Code Chapter 2950, has been

classified pursuant to the Ohio Revised Code Section 2152.83(A)(1)(a)(b),

and has committed the delinquent child to a term in a [DYS] facility or

another secure facility, * * *

{¶ 4} Also on February 14, 2013, a “Magistrate’s Decision and Judge’s Order of

Disposition” was issued that provides in part as follows:

This case came before Magistrate Todd Calaway on February 12,

2013, upon the Order of transfer from Darke County Juvenile Court

regarding determination of disposition; and the Court, being fully advised in

the premises, finds that [T.U.] is properly before the Court; and that an order

was entered in Darke County Juvenile Court on January 15, 2013 whereby

the child was adjudged delinquent for COUNTS I, II, AND III, acts of Gross

Sexual Imposition, in that sometime between August 26, 2010 and August

16, 2011, in the State of Ohio, County of Darke, the child age 17 years, for -5-

COUNT I, did have sexual contact with John Doe #1, not his spouse, he

being less than 13 years of age, to wit: seven (7) years of age, whether or

not he knew his age, contrary to Section 2907.05(A)(4) of the Ohio Revised

Code, for COUNT II, did have sexual contact with John Doe #2, not his

spouse, he being less than 13 years of age, to wit: nine (9) years of age,

whether or not he knew his age, an act contrary to Section 2907.05(A)(4) of

the Ohio Revised Code, a felony of the third degree; and for COUNT III, did

have sexual contact with Jane Doe # 3, not his spouse, she being less than

13 years of age, to wit: six (6) years of age, whether or not he knew her age,

an act contrary to Section 2907.05(A)(4) of the Ohio Revised Code, a felony

of the third degree, and said matter was transferred to Montgomery County

Juvenile court for disposition.

The court found T.U. “delinquent by reason of having committed acts which if committed

by an adult would constitute felonies of the third degree,” and it committed T.U. to DYS

“for a period of six (6) months and a maximum period not to exceed the child’s attainment

of the age of twenty-one.”

{¶ 5} On February 26, 2013, a “Magistrate’s Decision and Judge’s Order to

Vacate Disposition” was issued, ordering therein “that the former order of sex offender

registration and notification incorporated in Entry and Order filed February 12, 2013, is

hereby vacated. * * * It is further ordered that the child will have a Classification Hearing

upon his release from [DYS].”

{¶ 6} At the November 5, 2015 classification hearing before the juvenile court, the

following exchange occurred: -6-

MR. DEFFET: Well, Your honor, it’s my understanding that [T.U.] is

not classified at this time. Although it appears the Court purported to

classify him back in 2013 and did vacate that order. Therefore, since [T.U.]

is not classified, I will ask for declassification, because I think the Court can

no longer classify him. You don’t have any authority to do that at this time.

You need to do it - - order him to register at the disposition.

As the Court knows and as we’ve discussed in chambers, and other

cases, this is a punitive act. Therefore, it has to - - it has to occur at

disposition. Otherwise, he is facing what is sort of equivalent to double

jeopardy, and that is not appropriate.

I would submit, also, that the Court cannot punish [T.U.] after the age

of 21, which is what an order to register would result in. He is going to be

21 within a matter of days, and the Court has no authority or no jurisdiction

after he turns 21. It doesn’t have any authority over any child at any time

to affect any kind of disposition after age 21.

And I know the statute appears to give the Court authority to do that,

but that is a question that’s being looked at by the Supreme - - the Ohio

Supreme Court currently. As the Court knows, the Ohio Supreme Court

and the United States Supreme Court and other state’s courts, * * * there’s

a very clear trend to treat juveniles as juveniles, treat them differently than

adults, and to understand that they develop differently. They behave

differently. Because of that, we don’t - - and they should not be treated

punitively for being developing human beings; they are not the same as -7-

adults.

And along with that, there’s also research to show that classifying

and ordering kids to register has no effect - - no positive effect for the

community and has a negative effect on their treatment. I would ask the

court to take all that into account and not register. Even if the Court thinks

it has authority to do that, I would ask the Court to decide that it’s not

appropriate at this time. It wouldn’t have the desired effect. For those

reasons, Your Honor, I would submit that [T.U.] cannot be classified at this

time.

THE COURT: * * * and response from the State?

MR.SULEK: * * * We would disagree with the Public Defender’s

Office, that we believe this Court, the way the statute is written, that this

Court does have authority to classify * * *[T.U.] at this time due to the fact

that he’s being released early only because that he is turning the age of 21.

He has not been able to be rehabilitated. He has not completed his sex

offender treatment.

Due to the severity of the crime, we believe that he is not only a

danger to society, itself, but this would help in his rehabilitation by reminding

him of the severity of the acts that he committed. We would ask this Court

to classify him as a Tier III classification.

And regarding the after the age of 21, again, the State and the law is

very clear that this Court can classify him and that would - - would effect -8-

(sic) him after the age of 21. So for those reasons, the State would ask that

this Court classify [T.U.].

THE COURT: * * * [T.U.], I don’t know how much you understand,

you know, the legal arguments that we’re struggling with here today. And

the Court would have to acknowledge that there clearly are legal issues

which some are subject to cases pending in the Supreme Court of Ohio

right now, and they could affect your particular situation depending on what

this Court does.

In addition, there are issues with regards to classification and

registration, in and of itself, that some believe it’s of no benefit to society.

Some believe that it is a benefit to society; some believe that there’s no

benefit to sex offenders, themselves, and no benefit to their treatment.

There are some that believe that - - that say that registration is a reminder

for those who are - - have been adjudicated as sex offenders and that they

are being reminded of that through the registration process, helps them to

understand what they’ve hopefully tried to learn in their sexual offender

treatment, to how to avoid further involvement in the criminal justice system

by * * * committing other sex offenses.

I don’t profess to know all the answers to all the questions. What I

do believe is in this case, at the time of your sentencing initially on this case,

you were classified by this Court as a * * * Tier III sex offender which

requires registration for life every ninety days. And subsequent to that

classification, an administrative decision was made, a recommendation -9-

from a Magistrate submitted * * * to me vacating that classification and

requirement for registration for the purposes of delaying it until after

treatment, so that the Court could look at the evaluation of you at the time

you completed treatment in [DYS].

The - - you know, there is an argument as to whether or not the Court

has the authority to do that. This Court happens to believe that the

legislature, in its wisdom, has given this Court a great deal of discretion.

And I think that that is appropriate. And the statute goes so far as to say

that the court can do anything it deems to be in the best interest of

individuals that come before the Court.

So in this case, I believe that the sexual offender registration and

classification requirement has benefit. And as a result of that, I am going

to overrule the objections filed by the Public Defender’s Office and the

arguments that have been made under the theory that the classification was

done in accordance with the statute at the time of your sentencing, that it

was then vacating (sic) for the purpose of allowing you to get treatment, and

then to make a determination as to whether or not you should be classified

and required to register at that time.

Now, I have received a lengthy report with regard to your treatment,

all of which is not positive. That your treatment has not been successful,

and that you have never completed treatment, even though you’ve been in

[DYS] since, what two thousand and - -

[T.U.] Thirteen, sir. -10-

THE COURT: Thirteen. And you were committed to a six-month

minimum sentence, and you’ve been there ever since, mainly because you

haven’t completed that treatment. Understood?

[T.U.] Yes.

THE COURT: So that’s the reason and rationale behind this Court’s

decision that leads me to believe that I have the authority to classify you

today.

So I’m going to make sure that you go through the registration,

classification form. The most important thing for you to understand is that

failure to comply with that registration is a crime. It’s a felony. And it puts

you back in the adult criminal justice system if you fail to register.

Now, your lawyers can tell you that, one, you certainly have the right

to appeal any decision that comes out of this court. And secondly, that the

Supreme Court of Ohio is looking at a decision which may have some

bearing on your case. And your attorneys can explain that to you, which

may make some difference shortly. The case is pending before the court

now. They could decide tomorrow. And that may have some effect on what

you do. But, in the meantime, until that’s changed, I suggest you make

sure you understand what your compliance is.

MR. DEFFET: I don’t think the Court mentioned the tier level. I

would ask the Court to consider Tier I. I mean, that would still require him

to register for ten years. -11-

THE COURT: Tier III.

MR.DEFFET: And I would ask the Court to consider staying that

order until we hear from the court of - - from the Supreme Court.

THE COURT: The Court understands. I don’t - - I don’t mean to

minimize your request on the one hand. On the other hand, you know,

pursuant to our discussion, I believe that the tier three classification is - - is

appropriate. And I will not stay it pending the Court’s decision.

The Court will have to decide the case, and then action will have to

be taken before its clear whether or not you have to register. So keep

registering until your lawyer at some point in time tells you that you can stop.

{¶ 7} On November 5, 2015, counsel for T.U. filed a “Notice of Limited

Appearance and Memorandum in Opposition to Classification.” Counsel for T.U.

requested that the court “decline to classify him as a juvenile offender registrant because

classification was required at disposition pursuant to R.C. 2152.82, classifying [T.U.] at

this time violates his right to be free of successive punishments, and imposing a

punishment beyond the age of 21 violates [T.U.’s] right to due process of law and

constitutes cruel and unusual punishment.” Alternatively, counsel for T.U. requested

that the “Court not impose community notification and stay the imposition of his

registration requirements pending the Ohio Supreme Court’s decision in D.S., Case No.

2014-06007, and M.R., Case No. 2014-1315.”

{¶ 8} Also on November 5, 2015, the juvenile court issued a “Judge’s Final

Appealable Order” that provides:

It appearing to be in the child’s best interest, the Court orders: -12-

For 2013-000615-01:

• The judicial release is granted. [DYS] shall release the juvenile

forthwith to the custody of their parent/legal custodian.

• [T.U.] is not a Public Registry Qualified Juvenile Offender

Registrant, but is subject to community notification provisions.

{¶ 9} On November 10, 2015, the juvenile court issued the “AMENDED JUDGE’S

FINAL APPEALABLE ORDER.” T.U. asserts three assignments of error herein. T.U.’s

first assignment of error is as follows:

THE JUVENILE COURT ERRED WHEN IT CLASSIFIED T.U. AS A

JUVENILE SEX OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE

THE DETERMINATION AT T.U.’S DISPOSITION, IN VIOLATION OF R.C.

2152.82.

{¶ 10} T.U. assets as follows:

When a juvenile court adjudicates a child delinquent for committing

a sexually oriented offense that occurred when the child was between the

ages of 14 and 17, and the child was previously adjudicated delinquent for

committing a sexually oriented offense, the court is required to classify the

child as a juvenile offender registrant “at the time the judge makes the order

of disposition for the delinquent child.” R.C. 2152.82(A)-(B). The

disposition hearing is the only time that a court has the authority to classify

a repeat offender as a juvenile sex offender registrant. R.C. 2152.82(A)-

(B). * * * -13-

Here, T.U. was previously adjudicated delinquent for committing a

sexually oriented offense in March 2012. * * * Therefore, when T.U. was

adjudicated delinquent of a second sexually oriented offense, the juvenile

court was required to classify him as a juvenile sex offender registrant as

part of the dispositional order * * * in accordance with R.C. 2152.82. * * *

Although the juvenile court issued a classification order simultaneously with

T.U.’s disposition, it vacated the entry and ordered that T.U. should be

classified upon release from DYS. * * * And, the juvenile court issued a

classification order in November 2015, nearly three years after T.U.’s

disposition in the case and when it did not have jurisdiction to do so. R.C.

2152.82. * * *

* * * Here, T.U. turned 21 years old on December 8, 2015. * * *

Therefore, because the juvenile court vacated its order, and T.U. was not

classified at disposition, the juvenile court lost jurisdiction to classify him as

a juvenile offender registrant under R.C. 2152.82. The juvenile court was

without jurisdiction to classify T.U. upon his release from DYS under R.C.

2152.83(A)(1), because that section applies only when the juvenile court

was not required to classify the child under R.C. 2152.82. See R.C.

2152.83(A)(1)(c). Accordingly, this Court must vacate the juvenile court’s

classification and registration order. * * *

{¶ 11} The State responds that “[b]ecause T.U. was 17 years old at the time he

committed attempted kidnapping for a sexual purpose, because he had a prior -14-

adjudication for a sexually-oriented offense, and because the juvenile court was not

required to classify him under any other statute, R.C. 2152.82 was the statute applicable

to him.” Pursuant to R.C. 2152.82(A), according to the State, the juvenile court was

required to classify T.U. a juvenile sex offender registrant “ ‘as part of the dispositional

order.’ ”

{¶ 12} The State asserts that a “juvenile court’s jurisdiction generally continues

until the child reaches the age of twenty-one,” and that “written into the juvenile statutes

are provisions that allow (and arguably encourage) the juvenile court to modify, revise or

amend prior dispositions as the case proceeds.” The State argues that R.C.

2152.84(A)(1) and R.C. 2152.85(A) specifically “provide provisions for the modification or

termination of a prior classification up until the completion of the juvenile’s disposition.”

According to the State, “each time a juvenile court modifies, revises or amends a prior

dispositional order, it must file another dispositional order to reflect the changes in the

terms of the juvenile’s disposition.”

{¶ 13} The State asserts that the juvenile court’s order of February 14, 2013,

pursuant to which T.U. was committed to DYS and ordered to register as a Tier III Juvenile

Sex Offender/Child Victim Offender Registrant, “qualifies as a ‘dispositional order’ and,

by including as part of that order a juvenile-offender-registrant classification, the juvenile

court complied with R.C. 2152.82(A)’s requirement that such a classification be issued

‘as part of the dispositional order.’ ” The State asserts that the juvenile court’s order of

November 10, 2015 granting judicial release, which included an order that classified T.U.

again as a Tier III Juvenile Sex Offender/Child Victim Registrant, “also qualifies as a

‘dispositional order,’ and because the juvenile court included as part of that order a -15-

juvenile-offender-registrant classification, the juvenile court complied with R.C.

2152.82(A)’s requirement that such classification be issued ‘as part of the dispositional

{¶ 14} The State argues that the juvenile court’s February 14, 2013 dispositional

order remains in effect, and that nevertheless, if this Court concludes that the November

10, 2015 entry “is not a ‘dispositional order,’ and that the only dispositional order entered

in this case was the original February 14, 2013 entry, this Court should still find that T.U.

was properly classified as a Tier III Juvenile Sex Offender/Child Victim Registrant

because an order classifying him as such was included as part of the February 14, 2013

entry.” The State asserts as follows:

* * * T.U.’s position will likely be that the classification that the juvenile

court made in its February 14, 2013 order of disposition is no longer valid

because the juvenile court vacated the sex-offender-classification portion of

its order in a separate entry filed twelve days later. * * * Such an argument,

however, necessarily presumes that the juvenile court’s entry vacating the

order classifying T.U. a juvenile sex offender registrant was itself a valid

order. It was not.

Once a juvenile-sex-offender classification is made, the only

provisions by which that classification may be modified or terminated are

set out in R.C. 2152.84 and 2152.85. In particular, R.C. 2152.84(A)(1)

allows the juvenile court to determine whether its prior classification of the

child as a juvenile sex offender registrant should be continued or

terminated, but requires that such a determination be made only after a -16-

hearing and only “upon completion of the disposition of that child * * *.” But

here, the juvenile court vacated its prior classification without holding a

hearing and while T.U. was still serving his commitment to D.Y.S. The

juvenile court’s February 26, 2013 order vacating T.U.’s classification,

therefore, was not authorized by R.C. 2152.84.

It was also not authorized by R.C. 2152.85, which the juvenile court,

upon petition by the juvenile, to modify a prior classification, but requires the

court to wait at least three years after the initial classification is made before

entertaining such a petition (sic). * * * Here, no petition to modify the prior

classification had been filed, and even if it had been only twelve days had

passed since the initial classification was made, not three years as the

statute requires (sic).

The consequence of all this is that, regardless of whether T.U.’s

classification as a Tier III Juvenile Sex Offender/Child Victim Offender

Registrant arises out of the juvenile court’s February 14, 2013 dispositional

order or its November 10, 2015 order, the classification remains valid. * * *

{¶ 15} Finally, the State argues that if this Court “determines that T.U. was never

properly classified or that any prior classification is no longer in effect, the proper remedy

would be to remand the matter back to the juvenile court for a new dispositional order.”

{¶ 16} T.U. replies that “[c]ontrary to the State’s assertion, the juvenile court does

not issue more than one dispositional order.” T.U. argues that “when the juvenile court

vacated its February 14, 2013 order, and T.U. was not classified at disposition, the

juvenile court lost jurisdiction to classify him as a juvenile offender registrant under R.C. -17-

2152.82.” T.U. asserts that “a remand is not appropriate in this case.”

{¶ 17} We note that R.C. Sections 2152.82 to 2152.86 set forth Ohio’s statutory

scheme for juvenile-sex-offender classification and registration, and R.C. 2152.191,

entitled “Application of certain sections of Revised Code to child adjudicated a delinquent

child for committing sexually oriented offense,” provides which juvenile offenders are

subject to that scheme as follows:

If a child is adjudicated a delinquent child for committing a sexually

oriented offense or a child-victim oriented offense, if the child is fourteen

years of age or older at the time of committing the offense, and if the child

committed the offense on or after January 1, 2002, both of the following

apply:

(A) Sections 2152.82 to 2152.86 and Chapter 2950. of the Revised

Code apply to the child and the adjudication.

(B) In addition to any order of disposition it makes of the child under

this chapter, the court may make any determination, adjudication, or order

authorized under sections 2152.82 to 2152.86 and Chapter 2950. of the

Revised Code and shall make any determination, adjudication, or order

required under those sections and that chapter.

{¶ 18} R.C. 2152.82(A), entitled “Juvenile offender registrant,”3 provides:

3 Pursuant to R.C. 2950.01(M), a “ ‘[j]uvenile offender registrant’ means a person who is adjudicated a delinquent child for committing on or after January 1, 2002, a sexually oriented offense or a child-victim oriented offense, who is fourteen years of age or older at the time of committing the offense, and who a juvenile court judge, pursuant to an order issued under section 2152.82, 2152.83, 2152.84, 2152.85, or 2152.86 of the Revised Code, classifies a juvenile offender registrant and specifies has a duty to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code. * * *.” -18-

(A) The court that adjudicates a child a delinquent child shall issue

as part of the dispositional order an order that classifies the child as 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:

(1) 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.

(2) The child was fourteen, fifteen, sixteen, or seventeen years of age

at the time of committing the offense.

(3)The court has determined that the child previously was

adjudicated a delinquent child for committing any sexually oriented offense

or child-victim oriented offense, regardless of when the prior offense was

committed and regardless of the child’s age at the time of committing the

offense.

(4) The court is not required to classify the child as both a juvenile

offender registrant and a public registry-qualified juvenile offender registrant

under section 2152.86 of the Revised Code.

(B) An order required under division (A) of this section shall be

issued at the time the judge makes the order of disposition for the delinquent

child. Prior to issuing the order required by division (A) of this section, the

judge shall conduct a hearing under section 2152.831 of the Revised Code

to determine whether the child is a tier I sex offender/child-victim offender, -19-

a tier II sex offender/child victim offender, or a tier III sex offender/child

victim offender. If the court determines that the delinquent child to whom

the order applies is a tier III sex offender/child-victim offender and the child

is not a public registry-qualified juvenile offender registrant, the judge may

impose a requirement subjecting the child to the victim and community

notification provisions of section 2950.10 and 2950.11 of the Revised Code.

When a judge issues an order under division (A) of this section, all of the

following apply:

(1) The judge shall include in the order a statement that, upon

completion of the disposition of the delinquent child that was made for the

sexually oriented offense or child-victim oriented offense upon which the

order is based, a hearing will be conducted, and the order and any

determinations included in the order are subject to modification or

termination pursuant to 2152.84 and 2152.85 of the Revised Code.

(3) The judge shall include the order in the delinquent child’s

dispositional order and shall specify in the dispositional order that the order

issued under division (A) of this section was made pursuant to this section.

(C) Except as provided in division (D) of this section, an order

issued under division (A) of this section and any determinations included in

the order shall remain in effect for the period of time specified in section

2950.07 of the Revised Code, subject to a modification or termination of the -20-

order under section 2152.84 or 2152.85 of the Revised Code, and section

2152.851 of the Revised Code applies regarding the order and the

determinations. If an order is issued under division (A) of this section, the

child’s attainment of eighteen or twenty-one years of age does not affect or

terminate the order, and the order remains in effect for the period of time

described in this division.

{¶ 19} R.C. 2152.83, entitled “Order classifying child as juvenile offender

registrant; hearing to review effectiveness of disposition and treatment,” provides:

(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:

(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 -21-

registrant under section 2152.86 of the Revised Code.

(2) Prior to issuing the order required by division (A)(2) of this

section, the judge shall conduct a hearing under section 2152.831 of the

Revised Code, except as otherwise provided by that section, to determine

whether the child is a tier I sex offender/child-victim offender, a tier II sex

offender/child-victim offender, or a tier III sex offender/child-victim offender.

When a judge issues an order under division (A)(1) of this section, the judge

shall include in the order the determinations identified in division (B)(5) of

section 2152.82 of the Revised Code.

{¶ 20} The juvenile court’s dispositional order indicates that it classified T.U.

pursuant to R.C. 2152.83(A)(1)(a)(b). Pursuant to the plain language of R.C. 2152.82,

however, T.U.’s classification was mandatory under that section if he committed a

sexually oriented offense between the ages of 14 and 17, and the court determined that

he “previously was adjudicated a delinquent child for committing any sexually oriented

offense or child-victim oriented offense * * *.” Pursuant to R.C. 2152.83, that section only

applies if the “court was not required to classify the child a child juvenile offender registrant

under section 2152.82 of the Revised Code.”

{¶ 21} Pursuant to R.C. 2152.82(A), the juvenile court was required to “issue as

part of the dispositional order an order that classifies the child a juvenile offender

registrant * * *.” Pursuant to R.C. 2152.82(C), “an order issued under division (A) of this

section and any determinations included in the order shall remain in effect for the period

of time specified in section 2950.07, subject to a modification or termination of the order

under section 2152.84 or 2152.85 of the Revised Code * * *.” -22-

{¶ 22} We agree with the State that the only means to alter T.U.’s classification as

a tier III juvenile sex offender/child victim offender registrant (following his mandatory

classification pursuant to R.C. 2152.82) is pursuant to R.C. 2152.84 and R.C. 2152.85.

R.C. 2152.84, entitled “Hearings; orders,” provides in part:

(A)(1) When a juvenile court judge issues an order under section

2152.82 or division (A) or (B) of section 2152.83 of the Revised Code that

classifies a delinquent 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, upon completion of the disposition of that

child made for the sexually oriented offense or the child-victim oriented

offense on which the juvenile offender registrant order was based, the judge

* * * 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 as

provided under division (A)(2) of this section, and to determine whether its

prior determination made at the hearing held pursuant to section 2152.831

of the Revised Code as to whether the child is a tier I sex offender/child-

victim offender, a tier II sex offender/child-victim offender, or a tier III sex

offender/child-victim offender should be continued or modified as provided

under division (A)(2) of this section.

{¶ 23} R.C. 2152.85, entitled “Petitioning of judge by juvenile offender registrant,”

provides in part: -23-

(A) Regardless of when the delinquent child was classified a

juvenile offender registrant, upon the expiration of the applicable period of

time specified in division (B)(1),(2), or (3) of this section, a delinquent child

who had been classified pursuant to this section or section 2152.82 or

2152.83 of the Revised Code a juvenile offender registrant may petition the

judge who made the classification * * * to do one of the following:

(1) If the order containing the juvenile offender registrant

classification also includes a determination by the juvenile court that the

delinquent child is a tier III sex offender/child victim offender, to enter, as

applicable, an order that contains a determination that reclassifies the child

as either a tier II sex offender/child-victim offender or a tier I sex

offender/child-victim offender, the reason or reasons for that

reclassification, and a determination that the child remains a juvenile

offender registrant, or an order that contains a determination that the child

no longer is a juvenile offender registrant and no longer has a duty to comply

with section 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised

Code.

(B) A delinquent child who had been adjudicated a delinquent child

for committing on or after January 1, 2002, a sexually oriented offense or a

child-victim offense and who had been classified a juvenile offender

registrant relative to that offense may file a petition under division (A) of this

section requesting reclassification as described in that division after the

expiration of one of the following periods of time: -24-

(1) The delinquent child initially may file a petition not earlier than

three years after the entry of the juvenile court judge’s order after the

mandatory hearing conducted under section 2152.84 of the Revised Code.

{¶ 24} The juvenile court classified T.U. as a juvenile offender registrant as part

of its dispositional order on February 14, 2013. Based upon the foregoing, we conclude

that since R.C. 2152.84 and R.C. 2152.85 do not authorize the February 26, 2013 order

vacating T.U.’s sex offender classification, the order vacating the classification is void and

a nullity. We further note that T.U. was entitled to a mandatory hearing upon completion

of disposition to review the effectiveness thereof, and the juvenile court held a

classification hearing on November 5, 2015, again classifying him as a tier III juvenile sex

offender/child victim offender registrant, thereby complying with the statutory scheme set

forth in R.C. 2152.82 to 2152.86 for juvenile-sex-offender classification and registration.

{¶ 25} Since the juvenile court did not fail to classify T.U. “as part of its dispositional

order,” we conclude that T.U.’s first assigned error lacks merit, and it is accordingly

overruled.

{¶ 26} We will consider T.U.’s second and third assignments of error together.

They are as follows:

THE JUVENILE COURT VIOLATED T.U.’S RIGHT TO DOUBLE

JEOPARDY PROTECTIONS WHEN IT IMPOSED MULTIPLE

PUNISHMENTS FOR THE SAME OFFENSE, IN VIOLATION OF STATE

V. RABER, 134 OHIO St.3d 350, 2012-OHIO-5636, 982 N.E.2D 684; FIFTH

AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; -25-

AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION,

And,

TIER III JUVENILE OFFENDER REGISTRANT BECAUSE THE

CLASSIFICATION PERIOD EXCEEDS BEYOND THE AGE

JURISDICTION OF THE JUVENILE COURT, IN VIOLATION OF THE

EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION; AND, ARTICLE I, SECTIONS 9 AND 16, OHIO

CONSTITUTION.

{¶ 27} As briefly summarized by the Fifth District:

In Raber, the defendant, an adult offender, was convicted of sexual

imposition; therefore, according to R.C. 2950.01(B)(2)(a), a finding of

consent, or lack thereof, was required before the court could classify the

offender as a registrant when the victim was over eighteen years of age and

not under the custody of the offender. The indictment did not allege whether

the sexual conduct between Raber and his girlfriend was consensual. At

sentencing, the issue remained disputed. The trial court sentenced Raber

to sixty days in jail, plus a fine and community control. The sentencing entry

did not contain a registration requirement.

On March 2, 2010, thirteen months after sentencing, the trial court

held an evidentiary hearing to determine whether Raber should be classified

a Tier I sex offender subject to registration. During the hearing, the victim

testified she had consented to vaginal intercourse, but not anal intercourse. -26-

Based upon the testimony, the trial court determined the intercourse was

not consensual, and proceeded in classifying Raber a Tier I sex offender.

The Supreme Court of Ohio vacated the classification finding the trial

court lacked authority to classify Raber. The Court found R.C. 2950.01(B)(2)

specifically excepted consensual conduct from being registration eligible,

and the State needed to prove the issue before Raber was convicted and

sentenced.

In re D.S., 5th Dist. Licking No. 13-CA-58, 2014-Ohio-867, ¶ 27-29.

{¶ 28} We note that on March 30, 2016, the State filed a “Notice of Additional

Authority,” directing our attention to In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027,

54 N.E.3d 1184.4. Therein, the Ohio Supreme Court concluded as follows:

The Double Jeopardy Clause of the Fifth Amendment applies to

juvenile delinquency proceedings. In re A.J.S., 120 Ohio St.3d 185, 2008-

Ohio-5307, 897 N.E.2d 629, ¶ 26, citing Breed v. Jones, 421 U.S. 519, 95

S.Ct. 1779, 44 L.Ed.2d 346 (1975). Double-jeopardy concerns prohibit the

imposition of multiple criminal punishments for the same offense in

successive proceedings. Hudson v. United States, 522 U.S. 93, 99, 118

S.Ct. 488, 139 L.Ed.2d 450 (1997); State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, 34 N.E.3d 892, ¶ 10 (noting that Article I, Section 10 of the Ohio

Constitution also protects against double jeopardy). For both juveniles and

adults, our cases hold that Ohio's sex-offender-classification scheme

4 We note that a “Motion for Reconsideration of Appellant D.S.” was filed in the Supreme Court of Ohio on March 28, 2016, and was denied on May 18, 2016. -27-

“imposes additional criminal punishment on those convicted of sexually

oriented offenses.” Raber [, 134 Ohio St.3d 350, 2012-Ohio-5636, 982

N.E.2d 684] at ¶ 23. An increased sentence is prohibited by the Double

Jeopardy Clause when the defendant has a legitimate expectation of

finality. Id. at ¶ 24. However, when a defendant is or should be aware at

sentencing that the sentence may be increased, there is no legitimate

expectation of finality to invoke a double-jeopardy concern. See United

States v. Husein, 478 F.3d 318, 338 (6th Cir.2007), citing United States v.

Fogel, 829 F.2d 77, 87 (D.C.Cir.1987).

We have held that the Double Jeopardy Clause barred the deferred

sex-offender classification of an adult criminal defendant because

registration and notification duties imposed criminal punishment and the

defendant had a legitimate expectation of finality when the trial court

entered its judgment of conviction and sentence. Raber at ¶ 23, 26–27. But,

as we determined above, Raber is inapposite here. The defendant in Raber

was classified under R.C. 2950.03(A)(2), which required notice at

sentencing to the defendant of the duty to register. For a delinquent juvenile,

however, R.C. 2950.03(A)(3) provides that notice of a duty to register must

be given at the time specified in the applicable section of R.C. Chapter

2152, which permits classification upon the juvenile's release from a secure

facility.

Additionally, because Raber had a legitimate expectation of finality

when the trial court entered its judgment of conviction, the Double Jeopardy -28-

Clause prohibited the trial court from conducting a sex-offender-

classification hearing. But D.S.'s disposition order expressly stated that

classification was deferred until his release, which provided D.S. with notice

at disposition that a classification hearing would occur in the future and that

registration and notification requirements could be imposed at that time.

Thus, D.S. had no legitimate expectation of finality at disposition.

Accordingly, we conclude that classification upon release from a secure

facility as permitted under R.C. 2152.83 does not violate the prohibition

against double jeopardy.

In re D.S., ¶ 23-25.

{¶ 29} The Ohio Supreme Court further concluded as follows regarding due

process:

Due-process rights are applicable to juveniles through the Due

Process Clause of the Fourteenth Amendment to the United States

Constitution and Article I, Section 16 of the Ohio Constitution. In re C.S.,

115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 79, citing In re

Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re C.P., 131

Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, at ¶ 70. What process is

due depends on considerations of fundamental fairness in a particular

situation. C.S. at ¶ 80; C.P. at ¶ 71.

In re D.S., ¶ 28.

{¶ 30} The Court concluded that the “imposition of juvenile-offender-registrant

status under R.C. 2152.82 * * * with corresponding duties lasting beyond age 18 or 21 -29-

includes sufficient procedural protections to satisfy the due-process requirement of

fundamental fairness. And, given the allowance for periodic review and modification, it

is consistent with the rehabilitative purpose of the juvenile system.” Id., ¶ 37.

{¶ 31} Regarding T.U.’s second assignment of error, we note that at the time of his

February 14, 2013 dispositional order, he was classified as a Tier III Juvenile Sex

offender/child victim offender registrant, and as such he had an attendant duty to register

every ninety days for life, as the juvenile court advised him. R.C. 2950.06(B);

R.C. 2950.07(B)(1). T.U. was on notice that upon his release from DYS, the juvenile

court would conduct a hearing to address his ongoing classification, as required by

R.C. 2152.82(B)(1). The hearing occurred on November 5, 2015, and T.U. was again

classified a Tier III juvenile sex offender/child victim offender registrant. We agree with

the State that T.U’s reliance upon Raber is misplaced; Raber was an adult offender, and

R.C. 2950.03, entitled “Notice of duty to register and related requirements,” “directs a trial

court to notify a sex offender of the duty to register as a sex offender at the time of

sentencing for a sexually oriented offense.” Raber, ¶ 2. In contrast, as the State notes,

R.C. 2152.82 (B)(1) provides for review of classification after disposition, and R.C.

2152.84(A) also allows for reclassification/declassification upon completion of disposition.

For the foregoing reasons, T.U.’s right to double jeopardy protections was not violated,

and he was not subjected to multiple punishments for the same offense. Accordingly,

T.U.’s second assignment of error lacks merit and is accordingly overruled.

{¶ 32} For the reasons set forth in In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027,

54 N.E.3d 1184, T.U.’s third assignment of error is rendered moot. In other words, the

“imposition of juvenile-offender-registrant status under R.C. 2152.82 * * * with -30-

corresponding duties lasting beyond age 18 or 21 includes sufficient procedural

protections to satisfy the due-process requirement of fundamental fairness,” since

“juvenile-offender-registrant status is subject to statutorily prescribed review and can be

modified or terminated at the discretion of the juvenile court.” Id., ¶ 35, 37. Since T.U.’s

due process rights were not violated, and since T.U. was accordingly not subjected to

cruel and unusual punishment, his third assignment of error is overruled.

{¶ 33} Having overruled T.U.’s three assigned errors, the judgment of the trial

court is affirmed.

..........

FAIN, J. and FROELICH, J., concur.

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Andrew T. French Charlyn Bohland Hon. Nick Kuntz