The opinion
[Cite as In re K.S.R., 2012-Ohio-6217.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
IN RE: K.S.R., DELINQUENT CHILD : OPINION
: CASE NOS. 2011-P-0061
and 2011-P-0062
Appeals from the Portage County Court of Common Pleas, Juvenile Division, Case
Nos. 2011 JCA 290 and 2011 JCA 292.
Judgment: Reversed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee).
Timothy Young, Ohio Public Defender, and Amanda J. Powell, Assistant State Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215-9308 (For
Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, K.S.R., appeals from a judgment of the Portage County Court
of Common Pleas, Juvenile Division, adjudicating him as a delinquent for committing
two counts of gross sexual imposition and classifying him a Tier II juvenile sex offender
registrant.
{¶2} Two complaints were filed against appellant alleging him to be a
delinquent child, Case Nos. 2011 JCA 290 and 2011 JCA 292. Both complaints alleged
that appellant, who was 16 years old at the time of the offenses, committed sexual acts
against two different 11-year-old girls. The complaints alleged that appellant was
delinquent on two counts of gross sexual imposition, felonies of the third degree, in
violation of R.C. 2907.05(A)(4), and two counts of rape, felonies of the first degree, in
violation of R.C. 2907.02(A)(1), if committed by an adult.
{¶3} Thereafter, an adjudicatory hearing was held. Appellant admitted to both
counts of gross sexual imposition. Specifically, appellant stated that he used his hand
to rub the inner side of each girl’s thigh for the purpose of sexual gratification, and that
although he was unaware of their exact ages, he knew the girls were kids. The juvenile
court dismissed the rape charges on the state’s motion. The court ordered appellant
detained for 30 days for an Ohio Department of Youth Services (“DYS”) evaluation with
a sex offender component that included a probation department interview and a
psychological department review.
{¶4} A dispositional hearing was subsequently held. Appellant was committed
to the custody of the DYS for concurrent terms of not less than six months, and no
longer than his 21st birthday. The court also classified appellant as a mandatory Tier II
juvenile sex offender registrant. See R.C. 2950.01(F)(1)(c)(Tier II sex offender means,
inter alia, a violation of (A)(4) of section 2907.05). Appellant filed timely appeals, Case
Nos. 2011-P-0061 and 2011-P-0062. This court, sua sponte, consolidated both cases
for purposes of briefing, oral argument, and disposition. Appellant asserts the following
four assignments of error:
{¶5} “[1.] The trial court erred when it classified Kyle R. as a juvenile offender
registrant because it did not make that determination upon his release from a secure
facility, in violation of R.C. 2152.83(A)(1).
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{¶6} “[2.] The juvenile court abused its discretion when it classified Kyle R. as a
tier II juvenile offender registrant when it made that determination based solely on Kyle’s
offenses.
{¶7} “[3.] The juvenile court erred when it classified Kyle R. as a tier II juvenile
offender registrant because the application of R.C. 2152.83 to him violates his right to
equal protection under the law in violation of the Fourteenth Amendment to the United
States Constitution; Article I, Section 2 of the Ohio Constitution.
{¶8} “[4.] Kyle R. was denied the effective assistance of counsel as guaranteed
by the Sixth Amendment to the United States Constitution and Section 10, Article I of
the Ohio Constitution, when counsel failed to object to the timing of Kyle’s classification
hearing and failed to argue against a tier II classification.”
{¶9} This court has recently addressed these same four issues in a very similar
case, In re J.A.D., II, 11th Dist. No. 2012-P-0006, 2012-Ohio-5226. In J.A.D., a juvenile
who was 17 years old at the time of the offense admitted to one charge of rape in
violation of R.C. 2907.02(A)(1)(b), a first-degree felony if committed by an adult. The
trial court accepted the admission. Id. at ¶2. The juvenile court then committed appellant
to the custody of the DYS for not less than two years and no longer than his 21st
birthday. The court further classified him as a Tier III juvenile offender registrant. Id. On
appeal, the appellant in J.A.D. submitted the same issues for our review as appellant
has raised in this case. Id. at ¶4, 21-23.
{¶10} In his first assignment of error, appellant here argues the juvenile court
erred in classifying him as a juvenile offender registrant because it did not make that
determination upon his release from a secure facility, in violation of R.C. 2152.83(A)(1).
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R.C. 2152.83(A)(1) governs when a court is required to classify, for purposes of
registration, a first-time juvenile sex offender that is 16 or 17 at the time the offense was
committed. It provides:
{¶11} “(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:
{¶12} “(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.
{¶13} “(b) The child was sixteen or seventeen years of age at the time of
committing the offense.
{¶14} “(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.”
{¶15} Appellant was born on October 23, 1993. The crimes were committed in
July of 2010. Thus, he was 16 years old at the time he committed the offenses.
Appellant was committed to the custody of the DYS, a secure facility, at the disposition
hearing. Appellant alleges that according to the language of the statute, he should not
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have been classified until his release from the DYS, rather than at the disposition
hearing.
{¶16} Contrarily, the state contends the trial court possessed the discretion to
either classify appellant at the disposition hearing or upon release from a secure facility.
In support, the state analogizes R.C. 2152.83 (A)(1) with R.C. 2152.83(B)(1), the
subsection addressing the classification of 14 and 15 year old juvenile sex offenders.
Under subsection (B)(1), the juvenile court has the discretion to classify a child sex
offender at either the dispositional stage or upon release from a secure facility. The
state proposes this court should read subsection (A)(1) in the same fashion as
subsection (B)(1). Based on our prior determination in In re J.A.D., we agree with
appellant and reject the state’s argument.
{¶17} Appellant raised no objection below regarding the June 13, 2011
classification. Thus, we will review appellant’s argument under a plain error analysis.
“It is well established that ‘the failure to object [at the trial court level] constitutes a
waiver of any claim of error relative thereto, unless, but for the error, the outcome of the
[proceeding] clearly would have been otherwise.’ (Emphasis added.)” State v. Schlee,
11th Dist. No. 2004-L-070, 2005-Ohio-5117, ¶28, quoting State v. Underwood, 3 Ohio
St.3d 12, syllabus (1983), citing State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B).
“Furthermore, ‘notice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’” Id., citing State v. Gordon, 11th Dist. No. 92-A-1696, 1996 Ohio App. LEXIS
1078, *3-4 (Mar. 22, 1996), quoting Long at paragraph three of the syllabus.
{¶18} On this point, this court stated as follows in In re J.A.D.:
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{¶19} “R.C. 2152.83(A)(1) mandates that a juvenile court classify the juvenile
offender, for sex offender registration purposes, at one of two times, depending on the
nature of the court’s order. If the juvenile offender is not committed to the custody of a
secure facility, the juvenile court is required to classify the offender as part of its
dispositional order. If, as here, the offender is committed to the custody of a secure
facility, the court is required to classify the offender at the time of the offender’s release
from the secure facility. The clear language of R.C. 2152.83(A)(1) does not give a
juvenile court any discretion as to the timing for classifying a juvenile sex offender for
registration. Multiple districts in this state have ruled accordingly. In re P.B., 4th Dist.
No. 07CA3140, 2007-Ohio-3937, ¶8 (‘although a juvenile court has discretion as to the
type of disposition it makes, the court apparently does not have discretion to determine
when the delinquent child can be adjudicated a sexual predator. If a child is committed
to DYS, the legislature has decided that such a determination must wait until the child’s
release.’); In re Kristopher W., 5th Dist. No. 2008 AP 03 0022, 2008-Ohio-6075, ¶18
(where juvenile committed to custody of DYS, his classification ‘must be made upon his
release from a secure facility.’); In re H.P., 9th Dist. No. 24239, 2008-Ohio-5848, ¶14
(‘[i]n cases where a juvenile is committed to a secure facility, [the juvenile court] must
wait to classify the juvenile upon his release from the secure facility.’); In re T.D., 12th
Dist. No. CA2010-01-002, 2010-Ohio-6081, ¶28 (‘the timing for sex offender
classification [under R.C. 2152.83(A)(1)] is dictated by the commitment of the child to a
secure facility or the lack thereof.’)
{¶20} “In the instant matter, the juvenile court issued its classification as part of
the dispositional order. In doing so, the court ran afoul of the unambiguous statutory
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language. We therefore conclude that the juvenile court committed plain error in
classifying appellant as part of the dispositional order. As a result, we hold the juvenile
court’s order must be reversed and vacated.” Id. at ¶17-18.
{¶21} Similarly, here, the juvenile court issued its classification of appellant as a
Tier II sex offender as part of the dispositional order. Accordingly, based on the
foregoing holding in In re J.A.D., we conclude that the juvenile court committed plain
error and that its order must be reversed and vacated. Appellant’s first assignment of
error has merit and is well-taken.
{¶22} Appellant’s second and third assignments of error each challenge aspects
of the classification order entered as part of appellant’s dispositional order. In his
second assignment of error, appellant contends the juvenile court erred in classifying
him as a Tier II juvenile offender registrant when it made that determination based
solely on his offenses. In his third assignment of error, appellant alleges the juvenile
court erred in classifying him as a Tier II juvenile offender registrant because R.C.
2152.83 is an unconstitutional statute that violates his equal protection rights under the
United States and Ohio Constitutions.
{¶23} The record reflects that appellant did not raise either of these two issues
during the juvenile court proceedings.
{¶24} As stated in In re J.A.D.:
{¶25} “Pursuant to our analysis of appellant’s first assignment of error, the trial
court lacked authority to classify appellant via the dispositional order. That order is
therefore vacated and appellant’s classification must be postponed until he is released
from DYS. Because appellant cannot be classified until his release, any challenge to
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the substance of the trial court’s erroneous classification or the constitutionality of the
scheme is premature and not ripe for review.” Id at ¶24. (Emphasis added).
{¶26} Accordingly, as in In re J.A.D., appellant’s challenge to the substance of
the trial court’s classification of him as a Tier II sex offender and to the constitutionality
of R.C. 2152.83 is premature and not ripe for review. Moreover, appellant may raise
these issue before the trial court when appellant is classified. Thus, appellant’s second
and third assignments of error will not be considered at this time.
{¶27} In his fourth assignment of error, appellant maintains his counsel was
ineffective in failing to object to the timing of his classification hearing and in failing to
object to a Tier II classification.
{¶28} Regarding these arguments, we said in In re J.A.D.:
{¶29} “Appellant first argues counsel was ineffective for failing to object to the
timing of the court’s classification. This argument is moot. Specifically, the court
committed plain error when it classified appellant as part of the dispositional order. By
noticing plain error, the prejudice appellant suffered by counsel’s failure to object was
cured. Appellant’s argument on this point is therefore overruled.”
{¶30} “Appellant next asserts counsel was ineffective for failing to object to the
nature of his classification. Pursuant to our resolution of appellant’s first assignment of
error, however, the trial court’s act of classifying appellant as a Tier III offender was a
nullity. * * * [I]t did not have the authority to so classify appellant when it did and, as a
result, that classification must be vacated. Because appellant cannot be classified until
his release from DYS, counsel’s failure to object to the nature of the classification is
inconsequential. Appellant’s argument, therefore, lacks merit.” Id. at ¶27-28.
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{¶31} Accordingly, based on the foregoing reasons outlined in In re J.A.D. at
¶27-28, appellant’s fourth assignment of error does not have merit.
{¶32} For the reasons discussed in this opinion, appellant’s second and third
assignments of error are not yet ripe for resolution. Appellant’s fourth assignment of
error is overruled. However, appellant’s first assignment of error is sustained because
the trial court prematurely classified appellant for purposes of registration in its
dispositional order. Therefore, it is the judgment and order of this court that the portion
of the dispositional order classifying appellant is reversed and vacated. The matter is
remanded to the trial court for further proceedings consistent with this opinion.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.
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