[Cite as In re J.M., 2010-Ohio-2700.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

IN THE MATTER OF: ) CASE NO. 09 JE 21 

 ) 

J.M., ) O P I N I O N 

 ) 

A DELINQUENT CHILD. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Juvenile Division, Case No. 08DL35. 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Appellee: Attorney Thomas Straus 

 Prosecuting Attorney 

 Attorney Samuel Pate 

 Assistant Prosecuting Attorney 

 16001 State Route 7 

 Steubenville, Ohio 43952 

For Appellant: Attorney Timothy Young 

 Ohio Public Defender 

 Attorney Amanda Powell 

 Assistant Public Defender 

 250 East Broad Street, Suite 1400 

 Columbus, Ohio 43215 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: June 14, 2010 
VUKOVICH, P.J. 

¶{1} Juvenile appellant J.M. appeals the decision of the Jefferson County 

Juvenile Court classifying him a Tier I juvenile sex offender. Four issues are raised in 

this appeal. The first issue is whether the juvenile court committed error in finding J.M. 

to be a juvenile offender registrant subject to classification under the sex offender 

statutes when the record does not clearly indicate he was fourteen years of age at the 

time of the offense. The second issue is whether, assuming J.M. was fourteen years 

of age at the time offense, the juvenile court considered the factors in R.C. 2152.83(D) 

in finding J.M. to be a juvenile offender registrant and understood that the finding was 

discretionary, not mandatory. The third issue is whether trial counsel provided J.M. 

effective assistance of counsel at the juvenile sex offender classification hearing held 

on May 14, 2009. The fourth issue is whether Senate Bill 10’s juvenile sex offender 

classification system violates the equal protection clause of the Ohio and United 

States Constitutions. For the reasons expressed below, we find merit with the first and 

second issues and, accordingly reverse and remand the cause to the juvenile court for 

a redetermination of whether J.M. can be classified as a juvenile offender registrant. 

The remaining issues lack merit. 

STATEMENT OF FACTS

¶{2} A two count complaint was issued against J.M. on February 12, 2008, 

alleging that “sometime in 2005,” he: 1) raped A.H. in violation of R.C. 

2907.02(A)(1)(b), who was under thirteen years of age; and 2) attempted to rape A.H., 

in violation of R.C. 2907.02(A)(1)(b) and R.C. 2923.02(A). The second count 

contained a specification that A.H. was under ten years of age at the time of the 

alleged offense. J.M. was born January 26, 1991, and thus, at the time of the alleged 

offense, he was either thirteen or fourteen years old. 

¶{3} J.M. denied the allegations in the complaint and filed a motion for 

discovery. 02/25/08 J.E. and Motion. On February 26, 2008, the state filed its 

answers to discovery. Included in the response to discovery was a report from the 

investigating officer that stated that J.M. advised the officer that he was fourteen at the 
time of the alleged offense. Also included was a written statement from J.M. in which 

he admitted the allegations that he had A.H. perform oral sex on him and he attempted 

anal sex with her. He claimed that he “was about 14” at that time. 

¶{4} The state and J.M. reached a plea agreement and a change of plea 

hearing was held on May 21, 2008. The state amended the count for rape, a violation 

of R.C. 2907.02(A)(1)(b), a first-degree felony, to gross sexual imposition, in violation 

of R.C. 2907.05(A)(5), a fourth-degree felony. 05/14/09 Nunc Pro Tunc J.E.1 The 

state dismissed the second count of the complaint. Id. J.M. then changed his plea 

from a denial to the admittance of the amended complaint. Id. The court then found 

J.M. to be a delinquent child and stated: 

¶{5} “The Court finds that the delinquent child has been adjudicated a 

delinquent child or admitted to committing a sexually oriented offense as defined by 

Ohio Revised Code Chapter 2950, and pursuant to Ohio Revised Code Section 

2152.82 or Division (A) or (B) of the Ohio Revised Code Section 2152.83, the 

delinquent child is hereby given notice of the duty to register as a juvenile sex offender 

in accordance with Ohio Revised Code Section 2950.03. 

¶{6} “A hearing will be held at or prior to the end of disposition to determine 

his classification.” Id. 

¶{7} J.M. was then committed to the legal custody of the Ohio Department of 

Youth Services for a minimum period of six months. Id. However, that sentence was 

suspended, and he was placed at the New Horizon Youth Center for a minimum 

period of six months. Id. The court also imposed probation for a minimum term of one 

year and J.M. was ordered to have no contact with the victim. Id. 

 1

The plea was originally changed on May 21, 2008 and journalized on that date. In that entry 

the juvenile court indicated that the rape charge was amended to gross sexual imposition, a violation of 

R.C. 2907.05(B), a third degree felony, and also indicated that the second count in the complaint was 

dismissed. On August 20, 2008, the court entered a Nunc Pro Tunc entry that did not change the May 

21, 2008 judgment entry in any respect, except that it added that J.M. could not have contact with the 

victim. Then on May 14, 2009, the court entered another Nunc Pro Tunc entry where the court indicated 

that the first count of the complaint was changed from rape to gross sexual imposition, in violation of 

R.C. 2907.05(A)(5), a third-degree felony. J.M. alleges that the May 2009 Nunc Pro Tunc entry was 

done so that J.M. could be classified to the lowest sexual offender classification. The plea transcript 

does not indicate the statutory section for the pled to gross sexual imposition charge, rather, it merely 

states that J.M. was pleading guilty to “gross sexual imposition.” 
¶{8} On May 14, 2009, J.M.’s placement with New Horizons was terminated 

and a classification hearing was held. 05/14/09 J.E.; 05/14/09 Transcript. Following 

the hearing, the juvenile court once again stated that J.M. had been adjudicated a 

delinquent child for having committed a sexually oriented offense and was given notice 

of the duty to register as a juvenile sex offender. It further classified him as Tier I 

Offender, the lowest level, and once again stated that he had been classified pursuant 

to R.C. 2152.82 or R.C. 2152.83(A) or (B). 05/14/09 J.E. 

¶{9} J.M. timely appeals from the order classifying him a juvenile sex offender 

and labeling him a Tier I offender. 

FIRST ASSIGNMENT OF ERROR

¶{10} “THE JEFFERSON COUNTY JUVENILE COURT COMMITTED PLAIN 

ERROR WHEN IT CLASSIFIED J.M. AS A TIER I JUVENILE SEX OFFENDER 

REGISTRANT WITHOUT MAKING A DETERMINATION ABOUT J.M.’S AGE AT THE 

TIME OF THE OFFENSE. R.C. 2152.83(B).” 

SECOND ASSIGNMENT OF ERROR

¶{11} “THE JEFFERSON COUNTY JUVENILE COURT COMMITTED 

REVERSIBLE ERROR WHEN IT CLASSIFIED J.M. AS A TIER I JUVENILE SEXUAL 

OFFENDER REGISTRANT WITHOUT FOLLOWING THE REQUIREMENTS 

PROVIDED BY R.C. 2152.83(B)(2)-(D).” 

¶{12} These assignments of error both address the trial court’s classification of 

J.M. as a Tier I juvenile offender registrant. Thus, they are addressed simultaneously. 

¶{13} J.M. admits that neither he nor counsel objected to the juvenile court’s 

classification. Thus, we review the arguments under a plain error analysis. Plain error 

“exists when an error ‘seriously affects the basic fairness, integrity or public reputation 

of the judicial process, thereby challenging the legitimacy of the underlying judicial 

process itself.’” In re J-M.W., 9th Dist. Nos. 23066 and 23144, 2006-Ohio-6156, ¶9, 

quoting Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 122-23. 

¶{14} A juvenile court’s obligation to classify a juvenile sex offender is 

governed by portions of both R.C. Chapter 2152 and R.C. Chapter 2950. In 2007, the 

General Assembly enacted Senate Bill 10 to implement the federal Adam Walsh Child 

Protection and Safety Act of 2006. In doing that, the general assembly modified the 
classification scheme for both juvenile and adult sex offenders. That said, under both 

the old law and Senate Bill 10, the juvenile court must engage in a two step process in 

classifying a juvenile sex offender. In re C.A., 2d Dist. No. 23022, 2009-Ohio-3303, 

¶37. First, the court must determine whether the juvenile is a juvenile offender 

registrant who is subject to classification and registration. Id. Second, if the child is 

found to be a juvenile offender registrant, the juvenile court must then determine what 

tier, I, II or III, is applicable to the juvenile. Id. at ¶38. 

¶{15} Under these assignments of error, J.M. finds fault with the juvenile 

court’s determination that he was a juvenile offender registrant for two reasons. First, 

he contends that the court committed reversible error when it did not find, prior to 

labeling him a juvenile offender registrant, that he was fourteen years old at the time of 

offense. He claims that according to the indictment he could have been either thirteen 

or fourteen years of age at the time of the offense since the indictment indicated that 

the offense occurred “sometime in 2005.” He then asserts that if he was thirteen years 

of age at the time of the offense, he could not be found to be a juvenile offender 

registrant and classified under the sex offender classification and registration statutes. 

Second, he contends that even if he was fourteen at the time of the offense, by 

statute, classification is discretionary, not mandatory. He claims that the record does 

not show that the juvenile court was aware that classification was discretionary. 

¶{16} The state argued in its appellate brief that J.M.’s arguments under these 

assignments of error lack merit because as part of the negotiated plea agreement it 

was agreed by the parties that the offense occurred when J.M was fourteen years of 

age. This argument was not based on the record, but rather on the state’s 

recollections. At oral argument, however, the state agreed that the matter should be 

remanded to the trial court for a new classification hearing. 

¶{17} Our analysis begins with J.M.’s first argument that children under the age 

of fourteen adjudicated delinquent for a sex offense are not subject to classification 

and registration. It has been explained by our sister district that children under the age 

of fourteen that are adjudicated delinquent for a sex offense are not subject to 

classification and registration. In re A.E., 184 Ohio App.3d 812, 2009-Ohio-6094, ¶16. 
The statutes governing sex offender classification for both adults and juveniles support 

such a conclusion. 

¶{18} R.C. Chapter 2950 is the sex offender statute. R.C. 2950.01(M) defines 

a “juvenile offender registrant” as: 

¶{19} “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.” (Emphasis Added). 

¶{20} R.C. Chapter 2152 governs juveniles and sections 2152.82, 2152.83, 

2152.84, 2152.85 and 2152.86 discuss children adjudicated delinquent for committing 

a sexually oriented offense. Three of those statutes indicate that only children ages 

fourteen through seventeen can be classified. R.C. 2152.82(A)(2) (titled Juvenile 

offender registrant); R.C. 2152.83(A)(1)(b) and (B)(1)(b) (titled Order classifying child 

as juvenile offender registrant; hearing to review effectiveness of disposition and 

treatment); R.C. 2152.86(A)(1), (A)(2)(b), and (A)(3)(b) (titled Duties of the court in 

event of delinquency adjudication, release of child from department of youth services, 

or classification of child as juvenile offender registrant; automatic sex offender/childvictim offender classification; right to request hearing to contest classification). 

¶{21} Consequently, given all of the above, juvenile offenders under the age of 

fourteen at the time of the offense cannot be classified a juvenile offender registrant. 

¶{22} The record discloses that J.M. was born January 26, 1991, and 

therefore, for the first 26 days of 2005, he was thirteen years of age. The complaint 

states that the offense occurred some time in 2005. Therefore, J.M. could have been 

either thirteen or fourteen years old at the time of the offense. 

¶{23} Nothing in the record before this court conclusively establishes whether 

J.M. was thirteen or fourteen years of age at the time of the commission of the offense. 

The state did not amend the complaint to specify that the offense occurred when J.M. 

was fourteen years of age. The record also does not contain the negotiated plea 
agreement, which could possibly show that J.M. agreed that he was 14 years old at 

the time of the offense and agreed to the Tier I classification. Likewise, the transcript 

of the change of plea hearing does not indicate that the parties were agreeing that the 

offense occurred when J.M. was fourteen and that he was agreeing to the Tier I 

classification (the state was not even present at the change of plea hearing).2

¶{24} The only evidence in the record of J.M.’s age at the time of the offense is 

conflicting. In the discovery packet, which was filed with the court prior to the change 

of plea and prior to the classification hearing, the officer’s incident report indicates that 

J.M. told the officer the offense occurred when he was fourteen. However, the 

discovery packet also included a written statement made by J.M. in which he stated 

that “I was about 14.” J.M. indicating he was “about” fourteen is not a clear indication 

of his age. Thus, the record before this court creates an issue as to whether J.M. was 

13 or 14 years of age at the time of the offense. 

¶{25} However, that is not the only problem in this case. J.M.’s second 

argument is that the record does not show that the trial court was aware that if J.M. 

was fourteen at the time of the offense that labeling him a juvenile offender registrant 

and classifying him in a tier was discretionary, not mandatory. There is merit with this 

argument. 

¶{26} The juvenile court’s classification order states that J.M. was classified 

pursuant to R.C. 2152.82 or R.C. 2152.83(A) or (B). 05/14/09 J.E. J.M. could not be 

classified under either R.C. 2152.82 or 2152.83(A). While R.C. 2152.82 applies to 

children fourteen through seventeen years of age, it is inapplicable to J.M. because it 

only applies to children “previously * * * adjudicated a delinquent child for committing 

any sexually oriented offense, regardless of when the prior offense was committed and 

regardless of the child’s age at the time of committing the offense.” R.C. 

2152.82(A)(3). The record contains no indication that J.M. previously had been 

adjudicated delinquent because of the commission of a prior offense, let alone a 

 2

Had the state simply filed the negotiated plea, appeared at the plea hearing and indicated that 

the parties agreed that J.M. was fourteen at the time of the offense, or amended the complaint to 

indicate he was fourteen at the time of the offense, the state would not have to rely on its “recollection” 

to support its argument that J.M. was fourteen at the time of the offense. 
sexually oriented offense. Similarly, R.C. 2152.83(A) is not applicable because it only 

applies to children sixteen and seventeen years of age. R.C. 2152.83(A)(1)(b). 

¶{27} Therefore, the juvenile court’s classification could only be correct if R.C. 

2152.83(B) is applicable. That section states: 

¶{28} “(B)(1) The court that adjudicates a child a delinquent child, on the 

judge's own motion, may conduct at the time of disposition of the child or, if the court 

commits the child for the delinquent act to the custody of a secure facility, may conduct 

at the time of the child's release from the secure facility a hearing for the purposes 

described in division (B)(2) of this section if all of the following apply: 

¶{29} “(a) 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. 

¶{30} “(b) The child was fourteen or fifteen years of age at the time of 

committing the offense. 

¶{31} “(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. 

¶{32} “(2) A judge shall conduct a hearing under division (B)(1) of this section 

to review the effectiveness of the disposition made of the child and of any treatment 

provided for the child placed in a secure setting and to determine whether the child 

should be classified a juvenile offender registrant. The judge may conduct the hearing 

on the judge's own initiative or based upon a recommendation of an officer or 

employee of the department of youth services, a probation officer, an employee of the 

court, or a prosecutor or law enforcement officer. If the judge conducts the hearing, 

upon completion of the hearing, the judge, in the judge's discretion and after 

consideration of the factors listed in division (E) [sic] of this section, shall do either of 

the following: 

¶{33} “(a) Decline to issue 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; 
¶{34} “(b) Issue 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 and that states the determination that the 

judge makes 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.” R.C. 

2152.83(B). 

¶{35} Assuming that J.M. was fourteen at the time of the offense, the three 

requirements in subsection (B)(1)(a), (b), and (c) are met and thus, following the 

hearing after J.M. was released from New Horizon Youth Center, the juvenile court 

was permitted to classify him. That said, the language of section (B)(2)(a) and (b) 

clearly indicates that such a classification is discretionary and that the juvenile court 

must consider certain factors before determining whether to classify a juvenile. R.C. 

2152.83(B)(2) stated that these factors are found in division R.C. 2152.83(E). 

However, the indication that the factors are found in section (E) appears to be a 

typographical error since there are no factors listed in that section. It appears that the 

legislature meant section (D), which states: 

¶{36} “(D) In making a decision under division (B) of this section as to whether 

a delinquent child should be classified a juvenile offender registrant, a judge shall 

consider all relevant factors, including, but not limited to, all of the following: 

¶{37} “(1) The nature of the sexually oriented offense or the child-victim 

oriented offense committed by the child; 

¶{38} “(2) Whether the child has shown any genuine remorse or compunction 

for the offense; 

¶{39} “(3) The public interest and safety; 

¶{40} “(4) The factors set forth in division (K) of section 2950.11 of the Revised 

Code, provided that references in the factors as set forth in that division to ‘the 

offender’ shall be construed for purposes of this division to be references to ‘the 

delinquent child;’ 
¶{41} “(5) The factors set forth in divisions (B) and (C) of section 2929.12 of the 

Revised Code as those factors apply regarding the delinquent child, the offense, and 

the victim; 

¶{42} “(6) The results of any treatment provided to the child and of any followup professional assessment of the child.” R.C. 2152.83(D). 

¶{43} This section’s use of the word “shall” indicates that the juvenile court is 

required to consider those factors prior to determining whether or not to find J.M. to be 

a juvenile offender registrant. That said, there is nothing in the statute that indicates 

that the juvenile court was required to state on the record that it considered those 

factors and/or which ones applied. 

¶{44} The entire colloquy at the classification hearing is as follows: 

¶{45} “THE COURT: We’ll call Case Number 2008-DL-34, [J.M.]. The case is 

called for a classification hearing. We have no prosecutor, although it’s not necessary. 

Mr. Stickles, is there anything you’d like to say before we proceed? 

¶{46} “MR. STICKLES [counsel for J.M.]: Just briefly, Your Honor. I’ve had a 

chance to go over this with my client. We’ve gone over the nunc pro tunc journal entry 

in this case amending the code section from 2907.05(B) to one of 2907.05(A)(5). 

¶{47} “He understands at this time that that will result in a registration period of 

10 years during which time he will have to register in person with the sheriff of the 

county in which he resides, is employed or obtaining an eduction [sic] annually on the 

anniversary date of his initial registration. 

¶{48} “We’ve gone over the registration form. Your Honor, I’ve gone over it 

with him and his parents. To the best of anyone’s ability I fully believe they understand 

the form. It is complicated in nature and they have been instructed that should they 

have any questions they’re to contact either my office or Lieutenant Bell after Mr. 

McGraw completes his initial registration today. 

¶{49} “THE COURT: Very well. Thank you. We’ll go over that again. So 

based on the nunc pro tunc order which makes it possible that we can use Tier 1 [sic] 

as opposed to a more restrictive or more punitive registration, based on that order the 

Court finds that you are a Tier 1 [sic] sex offender and you are not going to be subject 

to community notification. In other words, we’re not going to tell everybody around you 
but – but you are going to have to comply with these requirements which are 

contained which Mr. Stickles has already gone over with you and you’re also going to 

go over it with Mr. Abdalla who will be the court’s representative with regard to that. Do 

you have any questions? 

¶{50} “[J.M.]: No, sir. 

¶{51} “THE COURT: All right. Then we will order that you be a Tier 1 [sic] – 

classification as a Tier 1 [sic] sex offender. Okay. Good luck to you. 

¶{52} “[J.M.]: Thank you. 

¶{53} “THE COURT: Thank your attorney. He did a good job for you. 

¶{54} “MR. STICKLES: Thank you, Your Honor.” 05/14/09 Tr. 3-4. 

¶{55} From this dialog we cannot conclude that the trial court or counsel was 

aware that if J.M. was fourteen at the time of the offense that classification and 

registration was discretionary, not mandatory or that if J.M. was thirteen at the time of 

the offense classification was not permitted. 

¶{56} The Fifth Appellate District has recently reviewed an argument that the 

classification of a fifteen year old juvenile as a juvenile offender registrant and a Tier III 

offender was done without considering all necessary factors. In the Matter of D.D., 5th 

Dist. No. 2008CA0167, 2009-Ohio-2501. In that case, the court, at the hearing, 

indicated that the classification as a Tier III offender was mandatory. The prosecutor 

then interjected that given the juvenile’s age, registration as a juvenile offender 

registrant was discretionary, not mandatory. The juvenile court then found that it had 

no discretion as to which tier to classify D.D., he was classified a Tier III offender as a 

matter of law. In remanding for a new classification hearing, the Fifth Appellate District 

stated: 

¶{57} “The record clearly reflects the trial court found the classification level to 

be Tier III as a matter of law. And, while the prosecutor advised and the trial court 

appears to have understood, the decision to classify Appellant a juvenile offender 

registrant was discretionary under R.C. 2152.83(B)(1), out of an abundance of caution, 

we reverse the trial court’s decision and remand the matter to the trial court for 

redetermination of whether to classify Appellant a juvenile offender registrant.” Id. at 

¶28. 
¶{58} The classification hearing in the case at hand does not clearly show that 

the trial court or counsel were aware that classification as a juvenile offender registrant 

for a fourteen year old was discretionary. As such, the In the Matter of D.D. case is 

factually distinguishable from the case at hand, because in that case the Fifth 

Appellate District found that the trial court seems to have understood that classification 

as a juvenile offender registration was discretionary. However, the factual difference 

actually makes the Fifth Appellate District’s reasoning more persuasive. That is, if one 

would reverse a case where discretion was discussed and appears to have been 

understood, it seems logical that one would also reverse a case where it is not 

discussed at all. 

¶{59} Consequently, we embrace the Fifth Appellate District’s use of an 

abundance of caution and reverse and remand the cause for a redetermination of 

whether J.M. is to be classified as a juvenile offender registrant and assigned Tier I. 

We do so for four reasons. First, the record before this court does not establish 

whether J.M. was fourteen or thirteen years of age when he committed the offense. 

Second, we do not know from the record before this court whether there was a 

negotiated plea agreement between the parties where the parties agreed that J.M. 

was fourteen at the time of the offense. Third, if there was a plea agreement, we do 

not know whether the juvenile offender registrant classification and Tier I classification 

was a part of that plea agreement. Finally, if there was no plea agreement, the record 

before this court does not show whether the trial court or defense counsel was aware 

that classification for a fourteen year old was discretionary and that classification was 

not permitted if J.M. was thirteen years of age at the time of the offense. As such, we 

find merit with these assignments of error. 

THIRD ASSIGNMENT OF ERROR

¶{60} “J.M. 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. 

R.C. 2152.83(B).” 

¶{61} In J.M.’s third assignment or error, he argues that trial counsel was 

ineffective at the classification hearing for two reasons. First, counsel failed to argue 
that J.M. was possibly thirteen at the time of the offense and thus, classification was 

not permitted. Second, he contends that even if he was fourteen at the time of the 

offense, counsel was still ineffective because he did not understand or argue that 

classification was discretionary. Furthermore, counsel did not argue any of the factors 

in R.C. 2152.83(D). 

¶{62} Based on our resolution of the first and second assignments of error, this 

assignment of error is rendered moot and consequently is not addressed. 

FOURTH ASSIGNMENT OF ERROR

¶{63} “THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO 

J.M., AS THE LAW VIOLATES HIS RIGHT TO EQUAL PROTECTION UNDER THE 

LAW. FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION; 

ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION.” 

¶{64} J.M. contends that Senate Bill 10 violates his right to equal protection 

under the law because it treats classes of juvenile offenders differently. For instance, 

juvenile offenders that are found delinquent for committing a sexually oriented offense 

when they are sixteen or seventeen years of age are mandated to be labeled juvenile 

offender registrants. R.C. 2152.82; R.C. 2152.83(A). Thus, those juveniles are 

automatically subject to classification and registration under R.C. 2950.01. However, 

first time juvenile offenders that are found delinquent for committing a sexually 

oriented offense when they are fourteen or fifteen years of age are not mandated by 

the statute to be labeled juvenile offender registrants, rather it is a discretionary 

decision for the juvenile court. R.C. 2152.83(B); R.C. 2152.82(A). Thus, those 

juveniles may not be subject to classification and registration under R.C. 2950.01. 

Furthermore, a juvenile offender that is found delinquent for committing a sexually 

oriented offense when he/she is under fourteen, by statute, cannot be labeled a 

juvenile offender registrant and, thus, is not subject to classification and registration 

under R.C. 2950.01. R.C. 2950.01(M); R.C. 2152.82(A); R.C. 2152.83(A) and (B). 

Thus, his arguments are addressing the constitutionality of R.C. 2152.82, R.C. 

2152.83 and R.C. 2950.01 as applied to juveniles. 

¶{65} J.M. did not raise this issue to the juvenile court. Typically, constitutional 

issues not raised to the trial court are waived on appeal. In re Goodman, 161 Ohio 
App.3d 192, 2005-Ohio-2364, ¶26, citing State v. Awan (1986), 22 Ohio St.3d 120, 

122-123. However, it is within the reviewing court’s discretion to address the 

constitutional argument under a plain error analysis. In re M.D. (1988), 38 Ohio St.3d 

149, 151 (stating that the waiver doctrine announced in Awan is discretionary). The 

Ohio Supreme Court has cautioned that constitutional questions should not be 

answered unless it is absolutely necessary; if a case can be decided without 

addressing the constitutional issue, the constitutional issues should not be ruled on. 

State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶9. See, also, State v. Hale, 7th 

Dist. No. 04MO14, 2005-Ohio-7080, ¶11. As aforementioned, we have found merit 

with the first and second assignments of error. Consequently, in this instance, we 

decline to exercise our discretion to review the constitutional argument.3

CONCLUSION

¶{66} For the foregoing reasons, we find that the first and second assignments 

of error have merit. Therefore, the judgment of the trial court is hereby reversed and 

this cause is remanded to the trial court for redetermination of whether to classify J.M. 

as a juvenile offender registrant. The third assignment of error is rendered moot by 

our resolution of the first two assignments of error. Likewise, we decline to exercise 

our discretion to review the fourth assignment of error because of our resolution of the 

first and second assignments of error and because the matter was not first raised in 

the trial court. 

Waite, J., concurs. 

DeGenaro, J., concurs. 

 3

Currently pending before the Ohio Supreme Court is the constitutionality of the Adam Walsh 

Act as it applies to juveniles. In re Smith, 120 Ohio St.3d 1416, 2008-Ohio-6166. Upon remand, if the 

constitutionality of the Adam Walsh Act is raised to the trial court, In re Smith may control and resolve 

those issues.