[Cite as In re: D.D.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: D.D. A MINOR CHILD : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2015CA0043 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2014JCR02406

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 28, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO CHARLYN BOHLAND Prosecuting Attorney Assistant State Public Defender 250 East Broad Street, Suite 1400 By: KATHLEEN O. TATARSKY Columbus, OH 43215 Assistant Prosecuting Attorney 110 Central Plaza South, Suite 510 Canton, OH 44702 Stark County, Case No. 2015CA00043 2

Baldwin, J.

{¶1} Appellant D.D. appeals from the February 19, 2015 Judgment Entry of the

Stark County Court of Common Pleas, Juvenile Division, adjudicating him a Tier I sex

offender.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 16, 2014, a complaint was filed alleging that appellant D.D.,

(DOB 8/3/96), was delinquent by reason of having committed the offense of rape in

violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The complaint alleged

that the victim was twelve years old at the time. At his arraignment on October 29, 2014,

appellant entered a plea of not true.

{¶3} Thereafter, on December 18, 2014, appellant withdrew his former plea of

not true and entered a plea of true to the charge of rape. The trial court found appellant

a delinquent offender. Pursuant to a Judgment Entry filed on February 4, 2015,

appellant was committed to the Department of Youth Services (DYS) for a minimum of

one year. Appellant also was adjudicated a Tier I sex offender and was ordered to

register in person annually for a period of ten years. Via a separate Judgment Entry

filed on February 19, 2015, appellant was found to be delinquent and committed to DYS

for a minimum of one year and not more than his attainment of the age of 21 years.

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

{¶5} THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.D AS A TIER I

JUVENILE OFFENDER REGISTRANT BECAUSE THE CLASSIFICATION PERIOD

EXTENDS BEYOND THE AGE JURISDICTION OF THE JUVENILE COURT, IN Stark County, Case No. 2015CA00043 3

VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.

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

{¶6} THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.D AS A TIER I

JUVENILE OFFENDER REGISTRANT BECAUSE D.D’S STATUS AS A MANDATORY

REGISTRANT UNDER R.C. 2152.83(A) VIOLATES THE EQUAL PROTECTION

CLAUSES OF THE U.S. AND OHIO CONSTITUIONS.

{¶7} THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.D AS A TIER I

JUVENILE OFFENDER REGISTRANT PURSUANT TO R.C. 2152.83(A), BECAUSE

THE STATUTE VIOLATES D.D’S RIGHT TO DUE PROCESS AS GUARANTEED BY

THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION; AND, ARTICLE I,

SECTION 16, OHIO CONSTITUTION.

{¶8} D.D. 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.

I

{¶9} Appellant, in his first assignment of error, contends that the imposition of a

classification period on him violates his right to due process and constitutes and

unusual punishment. Appellant emphasizes that the purpose of the juvenile system is

supposed to be rehabilitation rather than punishment, pointing out that the registration

scheme is now considered punitive.

{¶10} With regards to due process, this Court has previously found that

registration requirements extending past the child's twenty-first birthday does not violate

a child's due process rights. In re D.R., 5th Dist. Knox No. 13CA27, 2014–Ohio–588; In Stark County, Case No. 2015CA00043 4

re D.S., 5th Dist. Licking No. 13–CA–58. 2014–Ohio–867; In re: A.W., 5th Dist. Knox

No. 15CA3,

. As we previously noted in these cases, the registration

requirements in R.C. 2152.83 bear a rational relationship to the legitimate goal of

rehabilitation.

In accordance with our holdings in these cases, we overrule

appellant's argument with regard to due process.

{¶11} In D.R., this Court stated that though the imposition of R.C. 2152.83

registration requirements “may be punitive, they may help achieve the goal of

rehabilitation by motivating the juvenile to comply with treatment in order to reduce or

eliminate the registration requirement.” 5th Dist. Knox No. 13CA27, 2014–Ohio–588.

Additionally, as noted by the Seventh District, “we cannot conclude that the mere fact

that registration may be required past age twenty-one would make a scheme cruel and

unusual or shocking to a sense of justice.” In re M.R., 7th Dist. Jefferson No. 13 JE 30,

2014–Ohio–2623. While there is mandatory classification for sixteen and seventeen

year olds such as appellant, there is no automatic tier placement based upon the

offense as the juvenile court has discretion on the choice of tier after the juvenile has

been provided with an evidentiary hearing.

Further, the tier placement can be

appealed by the juvenile, the juvenile can, after three years of disposition, file a petition

seeking declassification or reclassification, and another petition later. R.C. 2152.85;

{¶12} As in D.R., M.R., and A.W., there is no community notification involved

here, the juvenile judge has a role in determining how dangerous the juvenile might be

or what level of registration would be adequate to preserve the safety of the public, and

the classification can be eliminated or modified three years after final disposition. 5th

Dist. Knox No. 13CA27, 2014–Ohio–588; 7th Dist. Jefferson No. 13 JE 30, 2014–Ohio– Stark County, Case No. 2015CA00043 5

2623. Accordingly, “the mere fact that the classification can extend beyond age twenty-

one is not cruel and unusual, nor does it shock the conscience or raise concerns with a

fundamental fairness.” In re M.R., 7th Dist. Jefferson No. 13 JE 30, 2014–Ohio–2623;

see also In re J.O., 2nd Dist. Montgomery No. 25903, 2014–Ohio–2813 (holding that a

juvenile court imposing a registration requirement that extends beyond the age of

twenty-one is not cruel and unusual punishment).

{¶13} Appellant's first assignment of error is, therefore, overruled.

II

{¶14} Appellant, in his second assignment of error, argues that R.C. 2152.83(A)

violates the equal protection clauses of the U.S. and Ohio Constitutions because

sixteen and seventeen year olds are required to register solely based on their age, while

children thirteen years or younger at the time of the offense are not subject to sexual

offender registrant classification, and the juvenile court has discretion to classify

children who are fourteen and fifteen at the time of the offense. Appellant contends this

age-based classification is not rationally related to the State's objective in making the

classification.

{¶15} To determine the constitutionality of a statue under the equal protection

clause, we must first determine whether a fundamental right or suspect class is

involved. Conley v. Shearer,

,

(1992). “A statutory

classification which involves neither a suspect class nor a fundamental right does not

violate the Equal Protection Clause * * * if it bears a rational relationship to a legitimate

government interest.” McCrone v. Bank One Corp.,

, 2005–Ohio–

6505,

. Suspect classes include race, sex, religion, and national origin; age Stark County, Case No. 2015CA00043 6

is excluded and is not a suspect class. Adamsky v. Buckeye Local School Dist.,

,

(1995).

{¶16} Where the challenger does not raise a suspect classification or a

fundamental right, the test provides that classifications among individuals are

permissible and the statute upheld if it is rationally related to a legitimate purpose, even

if the classifications are not precise. State v. Thompkins,

,

(1996); Groch v. General Motors,

, 2008–Ohio–546,

. Under a rational basis review, the judgment of the General Assembly is granted

substantial deference. State v. Williams,

,

(2000).

{¶17} In D.R., we found that though the imposition of R.C. 2152.83 registration

requirements may be punitive, they “may help achieve the goal of rehabilitation by

motivating the juvenile court to comply with treatment in order to reduce or eliminate the

registration requirement.” 5th Dist. Knox No. 13CA27, 2014–Ohio–588. See also In re.

{¶18} Further, other districts considering equal protection arguments have found

that the age classification scheme in R.C. 2152.83 bears a rational relationship to a

legitimate government interest and does not violate a juvenile's right to equal protection

of the law. The Eleventh District found in In re B.D. that the legislature made a policy

decision to exclude those thirteen and under from the classification scheme, found this

decision is a uniquely legislative function, and that the legislature's decision was not

unreasonable. 11th Dist. Portage No.2011–P–0078, 2012–Ohio–4463.

{¶19} The Seventh District found that the drawing of the line so that fourteen and

fifteen year old sex offenders are only subject to discretionary classification rather than Stark County, Case No. 2015CA00043 7

the mandatory classification (into a discretionary tier) that sixteen and seventeen year

olds are subject to has some rational basis to a legitimate government interest. In re

M.R., 7th Dist. Jefferson No. 13 JE 30, 2014–Ohio–2623. Since the purpose of the sex

offender registration is ultimately to protect the public (R.C. 2950.02), as a juvenile

matures, he becomes more responsible and thus more accountability can be expected.

The court found that, “it is not irrational for legislators to conclude that the farther a

juvenile is from adulthood, the more responsive he will be to treatment. From this, the

legislature could reason that the lower age of the offender, the reduced likelihood of

recidivism and thus the decreased need for tracking.”

{¶20} The Third District similarly found that the age classification scheme in R.C.

2152.83 bears a rational relationship to a legitimate government interest and does not

violate the appellant's right to equal protection of the law. In the Matter of J.M., 3rd Dist.

Wyandot No. 16–12–01, 2012–Ohio–4109. The court found that if the purpose of the

sexual offender classification registration is to “protect the public due to the likelihood of

recidivism among sex offenders, the General Assembly concluded that the lower the

age of the offender, the reduced likelihood of recidivism, thereby granting the juvenile

court discretion in determining whether a sex offender classification is needed when the

offender is younger.”

{¶21} In accordance with our decision in D.R., A.W. and the decisions from other

appellate districts, we find that the statute is rationally related to a legitimate

government interest.

{¶22} Appellant's second assignment of error is, therefore, overruled. Stark County, Case No. 2015CA00043 8

III

{¶23} Appellant, in his third assignment of error, maintains that R.C. 2152.83(A),

which mandates that a juvenile court issue a juvenile sex offender classification order,

violates fundamental fairness. Appellant notes that the juvenile court has no discretion

under the statute to determine whether or not sex offender classification and registration

is appropriate.

{¶24} A similar argument was raised in In re R.A.H., 8th Dist. No. 101936, 2005-

Ohio-3342. In such case, the juvenile argued that R.C. 2152.83 violated his due

process rights because it creates a nonrebuttable presumption that the juvenile who

committed the crime automatically posed a future risk to the community. In rejecting

such argument, the court, held, in relevant part, as follows at paragraphs 27-28:

The constitutional rights which prohibit a state from

depriving a person of “life, liberty, or property, without due

process of law” are derived from both the federal and Ohio

Constitutions. See Fourteenth Amendment, U.S.

Constitution, and Section 1, Article I of the Ohio Constitution.

See also State v. Hayden,

, 2002–Ohio–

4169,

, ¶ 6. Procedural due process requires

that the government provide constitutionally adequate

procedures before depriving individuals of a protected liberty

interest. Cleveland Bd. of Edn. v. Loudermill,

,

,

(1985). Stark County, Case No. 2015CA00043 9

We conclude the statute does not violate the due

process clause. The trial court has discretion in deciding

which tier applies to the 16– or 17–year–old sex offender,

who can present evidence at a hearing in support of a lower

tier. R.C. 2152.83(A)(2). Moreover, the classification can be

reduced once the juvenile completes disposition (R.C.

2152.84(A)(1), (2)(c)) and can be eliminated three years

after final disposition. R.C. 2152.85(A)(1)-(3), (B)(1)-(3).

Accordingly, we conclude that the mandatory provision does

not violate the due process clause.

{¶25} As noted by appellee, the trial court, at the February 4, 2015 hearing,

stated that it would revisit the decision to classify appellant as an offender when

appellant was completed with his treatment at DYS.

{¶26} Appellant’s third assignment of error is, therefore, overruled.

IV

{¶27} Appellant, in his fourth assignment of error, argues that he received

ineffective assistance of trial counsel because trial counsel failed to object to the

constitutionality of appellant’s classification. Appellant references the arguments made

with respect to the above three assignments of error.

{¶28} To demonstrate ineffective assistance of counsel, appellant must establish

the following as set forth in State v. Bradley,

,

(1989),

paragraphs two and three of the syllabus: Stark County, Case No. 2015CA00043 10

{¶29} 2. Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel's

performance. ( State v. Lytle [1976],

,

,

;

Strickland v. Washington [1984],

,

,

,

followed.)

{¶30} 3. To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different.

{¶31} Having found, in our disposition of appellant’s first, second and third

assignments of error, that appellant’s classification was constitutional, appellant’s fourth

assignment of error is overruled. Appellant cannot show that he was prejudiced by his

counsel’s failure to object to the constitutionality of appellant’s classification. Stark County, Case No. 2015CA00043 11

{¶32} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.