[Cite as In re O.P., 2018-Ohio-580.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 105429




                                         IN RE: O.P.
                                         Minor Child




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. DL 15101127


        BEFORE:           Keough, J., Laster Mays, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 15, 2018
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ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
By: Cullen Sweeney
Deputy Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

Jennifer Simmons
Assistant Public Defender
9300 Quincy Avenue, 5th Floor
Cleveland, Ohio 44106


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: James Sean Gallagher
Assistant County Prosecutor
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
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KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, O.P., appeals from the trial court’s judgment denying

his motion to vacate the juvenile court’s judgment that designated him a Tier I juvenile

sex offender under R.C. 2152.83(B). For the reasons that follow, we reverse and remand

with instructions for the juvenile court to enter an order vacating the juvenile sexual

offender designation.

                            I. Facts and Procedural History

       {¶2} On September 23, 2015, O.P. was adjudicated delinquent of rape. He was

15 at the time of his offense. The victim in the case was his 9-year-old sister. On

October 30, 2015, the juvenile court held a dispositional hearing and ordered that O.P. be

placed in a residential treatment center at Cleveland Christian Home. The juvenile court

did not classify O.P. as a sex offender at the time of disposition.

       {¶3} On May 4, 2016 and November 7, 2016, the juvenile court held hearings at

which it reviewed O.P.’s placement at the Cleveland Christian Home. On January 5,

2017, the juvenile court held a hearing to determine whether O.P. should be released from

the treatment center. The juvenile court agreed to discharge O.P. from the Cleveland

Christian Home and return him to his mother’s custody, finding that he had successfully

completed his program.
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       {¶4} The court then proceeded to hold a juvenile sex offender classification

hearing at which it classified O.P. as a Tier I offender. O.P. subsequently filed a motion

to vacate the classification, arguing that the trial court erred in untimely classifying him

upon his release from the Cleveland Christian Home, which is not a secure facility, and

that the classification should therefore be vacated. Attached to O.P.’s motion was an

affidavit from Mary Rodgers, placement aftercare coordinator at the Cleveland Christian

Home, in which she averred that not all the entrances and exits of the Cleveland Christian

Home are locked and under the exclusive control of its staff.

       {¶5} On June 6, 2017, after a hearing, the trial court denied O.P.’s motion.

O.P.’s counsel requested and was granted an opportunity to present the testimony of Gary

Underwood, a case manager from the Cleveland Christian Home. Underwood testified

that the Cleveland Christian Home has three programs: the Hope Center, the intensive

treatment program, and an open residential program. Underwood said that O.P. was

placed in the Hope Center, which is a residential treatment program for juvenile sex

offenders. He testified that the Hope Center “is not a locked unit” and that a youth could

simply walk away from the facility.

       {¶6} The juvenile court noted Underwood’s testimony for the record but stated

that its decision would stand notwithstanding Underwood’s testimony.           This appeal

followed.
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                                   II. Law and Analysis

      {¶7} In his assignment of error, O.P. contends that the trial court lacked authority

under R.C. 2152.83(B) to classify him as a juvenile sex offender at the time of his release

from the Cleveland Christian Home, which is not a secure facility, and that the

classification must be vacated. We review this question of law de novo. Pesek v.

Berkopec-Pesek, 8th Dist. Cuyahoga No. 87840, 2007-Ohio-2630, ¶ 24.

      {¶8} R.C. 2152.83(B)(1) establishes the statutory procedure for classifying 14- and

15-year-old juveniles as sex offenders. In re I.A., 140 Ohio St.3d 203, 2014-Ohio-3155,

16 N.E.3d 653, ¶ 6. Under R.C. 2152.83(B), a juvenile court is not required to classify a

14- or 15-year-old juvenile adjudicated delinquent of a sexually oriented offense as a

juvenile sex offender. Id.      Rather, “the decision whether to even hold the hearing is at

the judge’s discretion.” Id.

      {¶9} But if the juvenile court wants to hold a hearing and classify the juvenile

delinquent as a juvenile sex offender, R.C. 2152.83(B)(1) governs the timing of when the

hearing may occur. It states:

      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 (B)(2) of this section * * *
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       {¶10} The statute makes clear that the timing of the hearing depends on whether

the juvenile court commits the delinquent child to a secure facility. If the child is

committed to a secure facility, the juvenile court may conduct the classification hearing at

either the time of disposition or upon the child’s release from that facility. In re I.A. at ¶

13-14. But if the child is not committed to a secure facility, the classification hearing, if it

occurs at all, must be held at the time of disposition. Id.

       {¶11} R.C. 2950.01(K) defines “secure facility” as follows:

       “Secure facility” means any facility that is designed and operated to ensure
       that all of its entrances and exits are locked and under the exclusive control
       of its staff and to ensure that, because of that exclusive control, no person
       who is institutionalized or confined in the facility may leave the facility
       without permission or supervision.

       {¶12} To be a “secure facility,” the facility must be completely locked down and

“have all of its entrances and exits locked.”         In re Mudrick, 5th Dist. Stark No.

2007CA00038, 2007-Ohio-6800, ¶ 16.

       {¶13} The juvenile court did not conduct a classification hearing upon O.P.’s

disposition in October 2015. Nor did it commit him to a secure facility. The evidence

before the court as demonstrated by both Rodger’s affidavit and Underwood’s testimony

was that the Cleveland Christian Home is not a “secure facility” pursuant to R.C.

2950.01(K) because not all of its entrances and exits are locked and under the exclusive

control of its staff. This evidence was uncontroverted by the state.
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       {¶14} As R.C. 2952.83(B) makes clear, when a juvenile is not committed to a

secure facility, the juvenile court loses any authority to classify the juvenile after the

dispositional hearing. Thus, in this case, because the juvenile court did not commit O.P.

to a secure facility, it had no authority under the statute to conduct a classification hearing

upon O.P.’s release from the Cleveland Christian Home. See Mudrick at ¶ 18 (trial court

had no jurisdiction to hold a classification hearing pursuant to R.C. 2952.83(B)(1) upon

the juvenile’s release from a residential treatment facility because the facility was not a

secure facility).

       {¶15} Upon appeal, the state no longer disputes that O.P. was not committed to a

secure facility. Instead, it advances a new argument that the juvenile court had the

authority to conduct a classification hearing when O.P. was released from the Cleveland

Christian Home because the juvenile court has the authority to classify a juvenile at “any

point in the disposition period.”     It contends that under Juv.R. 2(M), “dispositional

hearing” means “a hearing to determine what action shall be taken concerning a child

who is within the jurisdiction of the court,” and therefore, the January 5, 2017 hearing to

determine whether O.P. should be released from the Cleveland Christian Home was a

dispositional hearing.

       {¶16} The state’s argument is wholly without merit. First, it obviously conflicts

with the language of R.C. 2152.83(B), which limits the classification hearing to “the time
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of disposition of the child.”    That phrase clearly refers to a single point of time — the

point where the juvenile court decides which disposition to impose upon the delinquent

child under R.C. 2152.11. The state’s contention that the phrase could refer to any

subsequent hearing, held for any reason, ignores the fact that the word “the” in the statute

limits the time for the hearing to a specific or particular point in time.

       {¶17} The state’s argument also conflicts with the Ohio Supreme Court’s

interpretation of R.C. 2152.83(B) in In re I.A. As the court stated, “R.C. 2152.83(B)

authorizes only a single hearing. A juvenile court may choose to hold that hearing either

at the juvenile’s disposition or at the time of the juvenile’s release, but not both.” In re

I.A., 140 Ohio St.3d 203, 2014-Ohio-3155, 16 N.E.3d 653, ¶ 19 (French, J., concurring).

 The court did not find, as the state argues, that the juvenile court may hold the

classification period at “any point” during the disposition period. Rather, the Supreme

Court was clear that the hearing may be held either at the disposition of the juvenile or

upon the juvenile’s release from a secure facility. Id. at ¶ 13-14.

       {¶18} Because the juvenile court did not commit O.P. to a secure facility, it was

without authority to hold a classification hearing upon his release from the Cleveland

Christian Home. Accordingly, the classification must be vacated.
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       {¶19} The assignment of error is sustained.            The juvenile sex offender

classification is reversed, and the matter is remanded for the juvenile court to enter an

order vacating its judgment finding O.P. to be a Tier I juvenile sex offender.

       {¶20} Judgment reversed and remanded.

        It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY
