[Cite as In re C.R. , 2021-Ohio-2456.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

IN RE: CASE NO. 9-20-42 C.R.,

ADJUDICATED O P I N I O N DELINQUENT CHILD.

Appeal from Marion County Common Pleas Court Family Division Trial Court No. 2019 DL 00347 Judgment Reversed and Cause Remanded Date of Decision: July 19, 2021

APPEARANCES:

Nathan Heiser for Appellant Caleb Carson, III for AppelleeCase No. 9-20-42

-2- ZIMMERMAN, J. {¶1} Appellant, the State of Ohio, appeals from the judgment of the Marion County Court of Common Pleas, Family Division, declining to cla ssify the appellee, C.R., as a “[j]uvenile offender registrant”. For the reasons t hat follow, we reverse. {¶2} This case stems from a November 9, 2018 altercation between C.R . and other juveniles in an institution operated by the Ohio Departme nt of Youth Services (“ODYS”) wherein “Jane Doe”, an employee of ODYS, tried to inte rvene to stop the fight. (Nov. 2, 2020 Tr. at 8). This incident occurred wh ile C.R., a child, was institutionalized at an ODYS institution pursuant to a commitme nt to ODYS. ( Id. at 7-8); (Oct. 1, 2019 Tr. at 3-11); (Doc. No. 1). {¶3} As a result of the altercation and in February 2019, a complain t was filed with the Cuyahoga County Common Pleas Court, Juvenile Div ision, alleging C.R. was a “[d]elinquent child” for committing acts that if cha rged as an adult would constitute Assault in violation of R.C. 2903.13(A), a third-deg ree felony; Aggravated Riot in violation of R.C. 2917.02(B)(2), a third-deg ree felony; and Gross Sexual Imposition (“GSI”) in violation of R.C. 2907.05(A) (1), a fourthdegree felony. (Nov. 2, 2020 Tr. at 9-10); (Doc. No. 1). {¶4} In July 2019, C.R. entered an admission to Count Three (as amen ded) to Attempted GSI under R.C. 2923.02 and R.C. 2907.05(A)(1), a f ifth-degreeCase No. 9-20-42

-3- felony. ( Id. ). The trial court thereafter adjudicated C.R. a “[d]elinquent child”. 1 ( Id. ). At the initial disposition hearing held in Cuyahoga County and prior to the issuance of dispositional orders, it became apparent to the tri al court (based on the probation report) that C.R. was a legal resident of Marion Coun ty, Ohio. ( Id. ). Thereafter, the Cuyahoga County trial court transferred the cas e to Marion County Common Pleas Court, Family Division, for disposition, which Mar ion County accepted. (Doc. Nos. 1, 2). See Juv.R. 11; R.C. 2151.271. {¶5} At the further dispositional hearing held in October 2019 in Ma rion County, the dispositional court ordered that C.R. remain in the Indian River Juvenile Correctional Facility of ODYS pending an assessment; that he be continued for an indefinite period of community control; and that, a commitment to ODYS for a minimum of six months be imposed. (Oct. 1, 2019 Tr. at 11-12); (Doc. No. 4). Moreover, the dispositional court ordered that the 6-month comm itment to ODYS run concurrent with the one-year commitment imposed in C.R.’s c ompanion case. 2 ( Id. ); ( Id. ). {¶6} Thereafter, having been notified that C.R. was scheduled for re lease on November 10, 2020, the dis positional court scheduled a sex-offe nder classification

1 It appears from the limited record before us arising from Cuya hoga County Common Pleas Court, Juvenile Division, that the Assault and Aggravated-Riot charges were dis missed on the State’s motion. (Mar. 15, 2021 Supp. Records). 2 C.R. had multiple companion cases before the dispositional cou rt at the time of the further dispositional hearing. (Oct. 1, 2019 Tr. at 11-12). In addition to the comm itment imposed herein, a second commitment to ODYS for a minimum of six months was imposed, which was also run concurrent to the one-year commitment referenced above. ( Id. ). The records for C.R.’s companion cases are not before us on appeal.Case No. 9-20-42

-4- hearing and ordered that C.R. be transported for said hearing. (Nov. 2, 2020 Tr. at 2); (Doc. Nos. 5, 6). However, at the classification hearing, the dispositional court declined to classify C.R. as a “[j]uvenile offender registrant” pursuant to R.C. 2152.83(B). ( Id. at 12); (Doc. No. 8). {¶7} The State timely appeals the judgment of the dispositional cour t and raises one assignment of error for our review. (Doc. No. 9). Assignment of Error The Trial Court Erred By Failing To Classify C.R. As A Juvenile Sex Offender Registrant When It Was Required To Do So Under R.C. 2152.83. {¶8} In its sole assignment of error, the State argues that the deci sion of the dispositional court to not classify C.R. as a “[j]uvenile offen der registrant” pursuant to the provisions set forth in R.C. 2152.83(A), and thus design ate him as a Tier I, II, or III sex offender/child-victim offender under R.C. 2152.82(B) (5), is an error of

law. Standard of Review {¶9} Appellate courts apply a de novo standard of review to an appea l from a trial court’s interpretation and application of a statute. In re A.K. , 9th Dist. Medina No. 09CA0025-M, 2009-Ohio-4941, ¶ 13, rev’d on other grounds , In re Cases Held for the Decision in In re D.J.S. , 130 Ohio St.3d 253, 2011-Ohio-5349. See also In re Adoption of O.N.C. , 3d Dist. Crawford No. 3-10-10, 2010-Ohio-5187, ¶ 11, citingCase No. 9-20-42

-5- Dawson v. Dawson , 3d Dist. Union Nos. 14-09-08, 14-09-10, 14-09-11, and 14-09- 12, 2009-Ohio-6029, ¶ 45, citing State v. Wemer , 112 Ohio App.3d 100, 103 (4th Dist.1996). A de novo standard of review requires an independe nt review of the trial court’s decision without any deference to the trial court ’s determination. In re

J.M. , 3d Dist. Wyandot No. 16-12-01, 2012-Ohio-4109, ¶ 15, citing Arnett v. Precision Strip, Inc. , 3d Dist. Auglaize No. 2-11-25, 2012-Ohio-2693, ¶ 10, citing Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership , 78 Ohio App.3d 340, 346 (2d Dist.1992). Analysis {¶10} R.C. 2152.83 sets forth the process for juvenile-sex-offender registration and classification for a “[d]elinquent child” at t he time of release from a secure facility. R.C. 2152.83; R.C. 2152.02(E). The timing of the classification hearing depends on the age of the child at the time he or she c ommitted the offense. 3

See R.C. 2152.83(A)(1)(b), (B)(1)(b). Specifically, R.C. 2152.83( A) requires mandatory classification and registration of juvenile-sex offen ders when the child

3 R.C. 2152.83(A) applies to a juvenile who was 16 or 17 years old at the time he or she committed the offense. See R.C. 2152.83(A)(1)(b). When divi sion (A) applies the juvenile court “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 “[j]uvenile offender registrant” and specifies that the child h as a duty to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06.” (Emphasis added.) R.C. 2152. 83(A)(1). R.C. 2152.83(B) applies when the juvenile was 14 or 15 at the time he or she committed the o ffense. See R.C. 2152.83(B)(1)(b). Under division (B), the court is not required to classify the juvenil e as a “[j]uvenile offender registrant”. Instead, the court, “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 se cure facility, may conduct at the time of the child’s release from the secure facility a hearing” to determin e whether the juvenile should be classified. (Emphasis added.) R.C. 2152.83(B)(1), (2).Case No. 9-20-42

-6- is adjudicated delinquent for a “[s]exually oriented offense” o r a “[c]hild-victim oriented offense”; the child was 16 or 17 years old at the time the offense was committed; and the court was not required to classify the child as either a “[j]uvenile offender registrant” or “[p]ublic registry qualified juvenile o ffender” under other specified provisions of the Revised Code. R.C. 2152.83(A)(1)(a )-(c). See also R.C. 2950.01(B)(1), (M), (N). {¶11} Once the trial court determines R.C. 2152.83(A)(1)(a)-(c) is ap plicable and prior to issuing its order under division (A)(2), the trial court must conduct a hearing as set forth in R.C. 2152.831 to determine whether the child is a Tier I, II,

or III sex offender/child-victim offender and must include the trial court’s determinations identified as set forth in R.C. 2152.82(B)(5) in that order. R.C. 2152.82(B)(5); R.C. 2152.83(A)(2); R.C. 2151.831(A). While man datory registrants are not permitted a hearing prior to the imposition of the duty to register,

the trial court is still afforded some discretion over mandator y registrants as to Tier classification and the registrant’s ability to seek modificatio n of their registration

duties. In re D.S. , 146 Ohio St.3d 182, 2016-Ohio-1027, ¶ 33; In re T.M. , 11th Geauga No. 2016-G-0060, 2016-Ohio-8425, ¶ 10-11. Moreover, at a completionof-disposition orders hearing, the trial court may exercise its discretion to continue the Tier classification, modify it, or declassify the “[j]uveni le offender registrant”.Case No. 9-20-42

-7- In re D.R. , 1st Dist. Hamilton No. C-190594, 2021-Ohio-1797, ¶ 17, citing R.C.

2152.84. See also R.C. 2152.85; R.C. 2152.851. {¶12} Indeed, according to our review of the record, there was no dis pute that C.R. was scheduled to be released from a secure facility ( at the time of the hearing) after serving an ODYS commitment based upon an act in which he was adjudicated a “[d]elinquent child” on or after January 1, 2002. Further, there was no dispute that C.R. was 16 years old at the time of the commis sion of the offense or that R.C. 2152.83 is the applicable statute. 4 (Nov. 2, 2020 Tr. at 2, 10). ( See Doc. Nos. 1, 5, 6); R.C. 2152.02(A), (B), (C)(1), (C)(3), (E)(1 ); R.C. 2152.83(A)(1)(a)-(c). Hence, the only remaining issue before t his court is whether an Attempted GSI constitutes a “[s]exually oriented offense” un der R.C. 2152.02

and R.C. 2950.01. 5 R.C. 2152.02 provides in its pertinent part:

4 To the extent that C.R. now asserts that the State was require d to submit additional proof (by way of testimonial or documentary evidence) of C.R.’s age at the time of commission of his offense during his classification hearing, his ar gument is specious. (Appellee’s Brief at 3). Indeed, the dispositional court was aware of C.R.’s age because it was included in the judgment ent ry of discretionary transfer as a factual finding; C.R.’s date of birth, age, and the date of offenses we re listed in the complaint, and the State argued that C.R. was 16 years old at the time he committed his offense (Attempted GSI), thereby, subjecting him to the mandatory classification and registration requirements set forth in R.C. 2152.83(A)(1) at the classification hearing. (Doc. No. 1); (Nov. 2, 2020 Tr. at 10-11). Certainly , C.R. never disputed that he did not meet the statutory criteria for mandatory classification and registratio n before the dispositional court and now raises error for the first time on appeal. See In re D.S. , 146 Ohio St.3d 182, 2016-Ohio-1027, ¶ 17 (concluding where a “dispute cannot be resolved on the face of undisputed a llegations in the complaint, we hold that the court must make a finding regar ding age eligibility before subj ecting the child to classification. However, that age-eligibility finding may occur, as it did here, prior t o or at the classification hearing”). Consequently, the State was not required to put on evidence as to an age-elig ibility finding since there was no dispute. See id. 5 Instead, the dispositional court’s focus was on factual determ inations as to adjudication (which had previously been addressed by the Cuyahoga County trial court) a nd whether there was a pattern of “[s]exual conduct” as to the underlying facts. (Nov. 2, 2020 Tr. at 8). See R.C. 2907.01(A). Compare R.C. 2907.01(B).Case No. 9-20-42

-8- (X) “Sexually oriented offense,” “juvenile offender registrant ,” “child-victim oriented offense,” “tier I sex offender/child-vic tim offender,” “tier II sex offender/child-victim offender,” “tier III sex offender/child-victim offender,” and “public registry-qualified juvenile offender registrant” have the same meanings as in sect ion 2950.01 of the Revised Code.

See R.C. 2152.02(X). R.C. 2950.01 states in its pertinent parts: (A) “Sexually oriented offense” means any of the following violations or offenses committed by a person, regardless of the person’s age: (1) A violation of section 2907.02, 2907.03, 2907.05 , 2907.06, 2907.07, 2907.08, 2907.21, 2907.22, 2907.32, 2907.321, 2907.322 , or 2907.323 of the Revised Code;

* * * (14) Any attempt to commit , conspiracy to commit, or complicity in committing any offense listed in division (A)(1) , (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), or (13) of this section. (Emphasis added.) 2950.01(A)(1), (14). See also R.C. 2950.01(E)(1)(c), (h); R.C. 2950.01(F)(1)(c), (i); and R.C. 2950.01(G)(1)(b), (i). Since A ttempted GSI is considered a “[s]exually oriented offense” under R.C. 2950.01 a nd because the other statutory criteria as set forth in R.C. 2152.83(A)(1)(a)-(c) is applicable under the facts presented, we conclude that the dispositional court was r equired to classify C.R. as a “[j]uvenile offender registrant”. See R.C. 2950.01(M); R.C. 2152.83(A)(1)(a)-(c). {¶13} Accordingly, we sustain the State of Ohio’s sole assignment of error.Case No. 9-20-42

-9- {¶14} Having found error prejudicial to the appellant herein in the p articulars assigned and argued in his assignment of error, we reverse the judgment of the dispositional court and remand for further proceedings consiste nt with this opinion. Judgment Reversed and Cause Remanded

WILLAMOWSKI, P.J. and MILLER, J., concur. /jlr