State v. Buttery

2017 Ohio 9113

• Court: Ohio Court of Appeals
• Decided: December 20, 2017
• Docket: C-160609
• Status: Published

Opinion

[Cite as State v. Buttery, 2017-Ohio-9113.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-160609 TRIAL NO. B-1506464 Plaintiff-Appellee, :

vs. : O P I N I O N.

ROBERT BUTTERY, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 20, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

DETERS, Judge. Facts and Procedure

1. The Juvenile Adjudications

{¶1} On October 14, 2011, defendant-appellant Robert Buttery

admitted in juvenile court to committing acts which, had they been

committed by an adult, would have constituted two counts of gross sexual

imposition. The magistrate’s orders of November 17, 2011, each state that the

parties agreed that “this is a Tier I offense.” On December 2, 2011, Buttery

was committed to the Department of Youth Services (“DYS”). The

commitment was suspended, and Buttery was placed on “probation” and

ordered to complete the residential program at Altercrest. The magistrate’s

January 13, 2012 decisions stated that “the youth is a Tier III sex offender”

and “[u]pon completion of the dispositions that were made for the sexually

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 ORC 2152.84 and ORC 2152.85.” At

the ends of both decisions is typed, “THIS IS A TIER I CLASSIFICATION--

NOT TIER III.” Buttery was notified of his duties to register as a Tier I

juvenile-offender registrant. Both of the magistrate’s January 13, 2012

decisions were signed by the juvenile court judge.

{¶2} On February 6, 2013, Buttery’s placement at Altercrest was

terminated. The juvenile court entered orders on July 29, 2013, releasing

Buttery from “official probation” and placing him on “nonreporting probation

with monitored time.” On September 3, 2014, the magistrate denied Buttery’s

application to seal the record and noted that he was to register until 2022

unless reclassified. On October 14, 2014, the matter was set for an R.C.

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2152.84 completion-of-disposition hearing. Various continuances occurred.

On April 28, 2015, the magistrate entered decisions stating that a

classification hearing had been held on January 13, 2012, and that Buttery

had been classified as a Tier III offender. No judge’s signature appears on

these decisions, and no notice of reporting requirements was filed. On May

13, 2015, the juvenile court entered two separate orders stating, “After

independent review, the Magistrate’s Decision and Order in this matter as

filed on 04/28/2015 is hereby approved and adopted as the Judgment of this

Court.” The record does not reflect that Buttery has had his completion-of-

disposition hearing in the juvenile court.

2. The Criminal Case

{¶3} In the present case, Buttery was indicted for failing to register

based on one of the juvenile gross-sexual-imposition adjudications. Buttery

filed a motion to dismiss the indictment, which the trial court overruled.

Buttery pleaded no contest, and the trial court found him guilty and

sentenced him as appears of record. Buttery has appealed.

Analysis

{¶4} Buttery’s first assignment of error alleges that the trial court

erred in overruling his motion to dismiss the indictment, because there is no

valid order in place requiring him to register.

{¶5} The state argues that a motion to dismiss the indictment was

not the appropriate vehicle to challenge Buttery’s duty to register. In State v.

Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, ¶ 23, the Ohio

Supreme Court stated, “Under Crim.R. 12(C)(2), trial courts may judge before

trial whether an indictment is defective. Without a doubt, an indictment is

defective if it alleges violations of R.C. Chapter 2950 by a person who is not

3 OHIO FIRST DISTRICT COURT OF APPEALS

subject to that chapter. There is no set of circumstances under which such a

person can violate the law’s requirements.” The court continued, “[S]uch a

determination does not embrace the general issue for trial,” and the trial court

is “well within its authority” to dismiss an indictment “where the law simply

does not apply.” Id. at ¶ 24. Therefore, Buttery’s motion to dismiss the

indictment was the proper vehicle to challenge whether he had a duty to

register. See State v. Amos, 1st Dist. Hamilton Nos. C-160717 and C-160718,

2017-Ohio-8448, ¶ 5.

{¶6} Buttery alleges that there is no valid order in place requiring

him to register. He argues that the January 13, 2012 orders classifying him as

a juvenile-offender registrant are invalid because the trial court signed the

magistrate’s decision, but did not enter its own judgment as required by

Juv.R. 40(D)(4)(e). Further, Buttery argues that the juvenile court judge’s

adoption of the magistrate’s decisions was not date-stamped or file-stamped

and was not filed with the clerk of courts.

{¶7} The record shows that the juvenile court judge signed each of

the magistrate’s January 13, 2012 decisions below the typed line stating, “The

Magistrate’s Decision is hereby approved and entered as the judgment of the

Court.” The decisions were entered on the juvenile court’s journal. The

decisions contained a clear pronouncement of the juvenile court’s judgment

and expressed the parties’ rights and responsibilities. See In re S.R., 1st Dist.

Hamilton No. C-170366, 2017-Ohio-8412, ¶ 2, citing In re A.T., 1st Dist.

Hamilton Nos. C-160597, C-160598 and C-160599, 2017-Ohio-5821, ¶ 10. We

hold that the January 13, 2012 decisions classifying Buttery as a Tier I

juvenile-offender registrant are valid judgments of the juvenile court.

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{¶8} Buttery next argues that his classification as a juvenile-offender

registrant is void because the magistrate’s April 28, 2015 entries improperly

increased his classification from a Tier I offender to a Tier III offender. But

the April 28 entries did not improperly increase his classification. The entries

stated, “A classification hearing was held on 1/13/2012. The defendant was

determined to be a Tier III sex offender.” The “Tier III” is clearly a

typographical error. On January 13, 2012, Buttery was classified as a Tier I

juvenile-offender registrant and notified of his registration duties as a Tier I

offender. The September 3, 2014 decisions denying Buttery’s petition to seal

the record state that Buttery “is a registered sex offender and is required to

register until 2022, unless reclassified,” indicating the ten-year registration

period for Tier I juvenile-offender registrants. The record is clear that Buttery

is a Tier I juvenile-offender registrant.

{¶9} Buttery also argues that the April 28, 2015 entries improperly

allowed him to “withdraw” his completion-of-disposition hearing.

{¶10} R.C. 2152.84(A)(1) provides that when a juvenile court issues

an order under R.C. 2152.83 classifying the juvenile as a juvenile-offender

registrant, “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 * * * to determine

whether the prior classification” should be continued, terminated, or

modified. R.C. 2152.84(A)(1) states that the juvenile court shall hold a second

hearing upon the completion of disposition.

{¶11} In In re Antwon C., 182 Ohio App.3d 237, 2009-Ohio-2567,

912 N.E.2d 182, ¶ 20 (1st Dist.), we stated,

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Juvenile [offender registrants] are afforded two classification

hearings. First, under R.C. 2152.83, a juvenile is afforded a

tier-classification hearing either as part of the child’s

disposition or, if the child is committed to a secure facility,

when the child is released. Second, under R.C. 2152.84, when a

child completes all aspects of the disposition, including

probation and any ordered treatment, the trial court “shall

conduct a hearing” to consider the risk of reoffending so that

the trial court can determine whether the order to register as a

sex offender should be continued or terminated. Further, at the

reclassification hearing, the trial court must determine whether

the specific tier classification in which the child has been placed

is proper and if it should be continued or modified.

{¶12} Buttery is entitled to a completion-of-disposition hearing in the

juvenile court. The record reveals, and the parties represented to the trial

court, that Buttery had not had his completion-of-disposition hearing at the

time he was convicted of failing to register. Pursuant to the juvenile court’s

January 13, 2012 decisions, he was a Tier I juvenile-offender registrant. The

first assignment of error is overruled.

{¶13} Buttery’s second assignment of error alleges that the trial court

erred in convicting him of failing to register on his no-contest plea because

there was no allegation that Buttery was “classified” as a juvenile-offender

registrant. Buttery argues that the statement of facts read into the record

when he pleaded guilty to failing to register did not include required language

that he was “classified” as a juvenile-offender registrant, and therefore, the

state failed to allege an essential element of the offense of failing to register.

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{¶14} The indictment alleged that Buttery failed to register when he

“was required to register pursuant to division (A) and (B) of this section or

failed to send the notice of intent as required pursuant to division (G) of this

section * * * and the most serious sexually oriented offense * * * that was the

basis of the registration * * * requirement that was violated” was gross sexual

imposition “convicted in the HAMILTON COUNTY JUVENILE COURT on

OCTOBER 14, 2011, in violation of Section 2950.04 of the Revised Code.” At

the plea hearing, the prosecutor read the indictment into the record.

{¶15} We note that Buttery was not “convicted” of gross sexual

imposition in the juvenile court, but was adjudicated delinquent for having

committed acts that would have constituted gross sexual imposition had they

been committed by an adult. Buttery argues that simply alleging that he had

been “convicted” or adjudicated delinquent of gross sexual imposition was

insufficient to allege that he had a duty to register. The state, Buttery argues,

had to allege that he had also been classified by the juvenile court as a

juvenile-offender registrant.

{¶16} The indictment alleged that Buttery “failed to register * * *

when he was required to register * * * in violation of Section 2950.04 of the

Revised Code.” Buttery admitted to the facts as alleged in the indictment.

Therefore, he admitted that he failed to register when he was required to

register. That was enough for the trial court to find him guilty under R.C.

2950.04. The second assignment of error is overruled.

{¶17} Buttery’s third assignment of error alleges that his conviction

for failing to register was unconstitutional under State v. Hand, 149 Ohio

St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, because it was based on a prior

juvenile adjudication. In Hand, the Ohio Supreme Court held that the

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“statute treating prior juvenile adjudications as the equivalent of adult

convictions to enhance either the degree of or the sentence for subsequent

offenses committed as adults violated due process * * *.” Id. at syllabus.

Hand involved the application of R.C. 2929.13(F)(6), which requires a

mandatory prison term for a defendant who has committed a first- or second-

degree felony if the defendant has been previously convicted of a first- or

second-degree felony. R.C. 2929.13(F)(6) did not define “convicted,” so the

lower courts had applied R.C. 2901.08(A), which stated that an adjudication

of delinquency was a conviction for purposes of determining the offense to be

charged and the sentence to be imposed. The United States Supreme Court in

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), held that “[o]ther than the fact of prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” The

Hand court reasoned that “because a juvenile adjudication is not established

through a procedure that provides the right to a jury trial, it cannot be used to

increase a sentence beyond a statutory maximum or mandatory minimum.”

Hand at ¶ 13.

{¶18} This court declined to extend Hand in State v. Barfield, 1st

Dist. Hamilton No. C-160768, 2017-Ohio-8243, and State v. Carnes, 2016-

Ohio-8019, 75 N.E.3d 774 (1st Dist.). In those cases, we held that Hand did

not bar the use of a prior juvenile adjudication as the disability element for

the offense of having weapons while under a disability, because the issue was

the existence of the disability, not its reliability. We stated in Barfield,

Hand concerned the due process implications of a statute that

(1) equated a juvenile adjudication with an adult conviction,

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and (2) treated the adjudication as a conviction to enhance a

sentence. The statute in this case does not treat an adjudication

as an adult conviction. The juvenile adjudication is a disability

element in its own right. Further, the disability element in the

statute is not a penalty-enhancing element. It is an element of

the crime. Consequently, the due process concerns raised in

Hand do not exist.

Barfield at ¶ 7.

{¶19} The Second Appellate District also declined to extend Hand to

preclude the use of a juvenile adjudication as the disability element in a

weapons-under-disability case in State v. McComb, 2d Dist. Montgomery No.

26884, 2017-Ohio-4010, stating,

Pursuant to the statute, a violation of [the weapons-under-

disability statute] requires an offender to either have a prior

conviction or a prior juvenile adjudication. Unlike the statute

that was struck down in Hand, the statute at issue, R.C.

2923.13(A)(2), does not treat a prior juvenile adjudication as a

conviction. Rather, a prior juvenile adjudication and conviction

are treated as alternative elements necessary to establish the

offense of having weapons while under a disability. Hand does

not ban the use of a prior juvenile adjudication as an element of

an offense; rather, Hand bans the use of a juvenile adjudication

to enhance a penalty by treating the adjudication as an adult

conviction.

Id. at ¶ 26.

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{¶20} In this case, R.C. 2950.04 distinguishes between an adult

offender convicted of a sexually-oriented offense and a juvenile adjudicated

delinquent and classified for having committed a sexually-oriented offense.

While both are required to register under the statute, the registration

requirements are based on either an adult conviction or a juvenile

adjudication. The statute does not treat a juvenile adjudication as a

conviction; the juvenile is required to register based upon the juvenile

adjudication and classification. The registration requirement does not

depend on an adult conviction. Like the juvenile adjudication constituting the

disability element in the weapons-under-disability cases, the juvenile

adjudication for a sexually-oriented offense requires registration in its own

right. The juvenile adjudication is not a penalty-enhancing element; it is an

element of the crime of failing to register.

{¶21} We hold that Hand does not bar the use of Buttery’s juvenile

adjudication as the basis of his indictment and conviction for failing to

register. The third assignment of error is overruled.

{¶22} The judgment of the trial court is affirmed.

Judgment affirmed.

MOCK, P.J., concurs. CUNNINGHAM, J., dissents.

CUNNINGHAM, J., dissenting.

{¶23} I respectfully dissent for the reasons set forth in State v. Carnes, 2016-Ohio-8019, 75 N.E.3d 774 (1st Dist.). And thus, I would

determine the first and second assignments of error to be moot.

Please note: The court has recorded its own entry this date.