[Cite as In re G.M, 188 Ohio App.3d 318, 2010-Ohio-2295.]




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




IN RE G.M.
                                                            CASE NO. 4-09-33


                                                            OPINION




                Appeal from Defiance County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 25235-8

                                    Judgment Reversed

                             Date of Decision: May 24, 2010




APPEARANCES:

        Amanda J. Powell, for appellant G.M..

        Morris J. Murray and Russell R. Herman, for appellee.




        SHAW, Judge.
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       {¶1} Appellant G.M. appeals the October 2, 2009 judgment entry of the

Defiance County Court of Common Pleas, Juvenile Division, classifying him as a

tier III juvenile sex-offender registrant, subject to community notification.

       {¶2} This matter arises from the September 20, 2005 adjudication of G.M.

as a delinquent child for four counts of rape, in violation of R.C. 2907.02(A)(1)(b),

each a felony in the first degree if committed by an adult. The juvenile court

committed G.M. to the Ohio Department of Youth Services (“DYS”) for three

years on each offense for a total of 12 years. However, the longest possible

commitment of a delinquent child to DYS is until the child attains the age of 21.

Because G.M. was 16 years old at the time of his adjudication, the court specified

that “DYS shall not release this juvenile prior to 21st birthday.” (Emphasis sic.)

       {¶3} On June 26, 2009, G.M. filed a motion with the juvenile court

requesting judicial release prior to August, 17, 2009—G.M.’s 21st birthday. The

court subsequently denied G.M.’s motion for judicial release and scheduled a

hearing on August 17, 2009, to determine G.M.’s classification as a juvenile sex-

offender registrant.

       {¶4} On August 17, 2009, G.M. turned 21 and was released from the

custody of DYS. On August 17 and 18, 2009, the court conducted a juvenile sex-

offender classification hearing. During this hearing, G.M.’s counsel objected to




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the juvenile court’s jurisdiction to proceed with the classification of G.M. after his

21st birthday. The court overruled the objection and continued with the hearing.

       {¶5} On August 18, 2009, the juvenile court issued an order classifying

G.M. as a tier III juvenile sex-offender registrant, subject to community

notification. On October 2, 2009, the court entered its final judgment on the

matter. G.M. now appeals, asserting six assignments of error.

                               Assignment of Error I

             The Defiance County juvenile court erred when it classified
       G.M. as a Tier III juvenile sex offender registrant after he turned
       twenty-one years of age.

                               Assignment of Error II

               The trial court abused its discretion when it found that G.M.’s
       classification as a Tier III juvenile sex offender registrant was
       offense-based, in violation of R.C. 2950.01(E) through (G).

                              Assignment of Error III

            The trial court erred when it ordered G.M. to be subject to
       community notification.

                              Assignment of Error IV

               The trial court erred when it found Senate Bill 10
       constitutional as applied to G.M., as the application of Senate Bill 10
       to G.M. violates his right to due process as guaranteed by the
       Fourteenth Amendment to the United States Constitution and Article
       I, Section 16 of the Ohio Constitution.

                               Assignment of Error V




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              The retroactive application of Senate Bill 10 to G.M. violates
       the Ex Post Facto Clause of the United States Constitution and the
       Retroactivity Clause of Section 28, Article II of the Ohio
       Constitution.

                               Assignment of Error VI

              The juvenile court erred when it applied Senate Bill 10 to
       G.M., as the law violates his right to equal protection under the law
       in violation of the Fourteenth Amendment to the United States
       Constitution; Article 1, Section 2 of the Ohio Constitution.

                        The First Assignment of Error

       {¶6} In his first assignment of error, G.M. asserts that the juvenile court

erred when it issued an order classifying him as a Tier III juvenile sex-offender

registrant after he turned 21 years old. Specifically, G.M. argues that once he

attained the age of 21, the juvenile court no longer had jurisdiction to classify him.

       {¶7} The juvenile court has exclusive original jurisdiction over delinquent

minors.    This power is derived from Section 1, Article IV of the Ohio

Constitution. The juvenile court is established and its jurisdiction is defined by

R.C. Chapter 2151.       With regard to juvenile sex-offender registration and

notification, R.C. 2151.23(A)(15) specifically provides the juvenile court with

exclusive original jurisdiction to:

       [C]onduct the hearings, and to make the determinations, adjudications, and
       orders authorized or required under sections 2152.82 to 2152.86 and
       Chapter 2950. of the Revised Code regarding a child who has been
       adjudicated a delinquent child and to refer the duties conferred upon the
       juvenile court judge under sections 2152.82 to 2152.86 and Chapter 2950.



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      of the Revised Code to magistrates appointed by the juvenile court judge in
      accordance with Juvenile Rule 40.

(Emphasis added.)

      {¶8} R.C. Chapter 2152 delineates the criminal provisions to be used by

juvenile courts in delinquency matters.        In delinquency proceedings, R.C.

2152.02(C)(1) defines the term “child” to mean a person who is under 18 years of

age, except as otherwise provided in R.C. 2152.02(C)(2) to (7).                   R.C.

2152.02(C)(6) provides the following exception to the general definition:

      The juvenile court has jurisdiction over a person who is adjudicated
      a delinquent child or juvenile traffic offender prior to attaining
      eighteen years of age until the person attains twenty-one years of
      age, and, for purposes of that jurisdiction related to that adjudication,
      except as otherwise provided in this division, a person who is so
      adjudicated a delinquent child or juvenile traffic offender shall be
      deemed a “child” until the person attains twenty-one years of age.

(Emphasis added.)

      {¶9} According to the Supreme Court of Ohio, the second clause in R.C.

2152.02(C)(6) means that “when a juvenile court is exercising jurisdiction over a

person adjudicated a delinquent child pursuant to the matter for which the person

was adjudicated delinquent, the person adjudicated delinquent shall be treated as a

child until he reaches the age of 21.” (Emphasis added.) In re Andrew, 119 Ohio

St.3d 466, 2008-Ohio-4791, 895 N.E.2d 166, ¶6.




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       {¶10} In the present case, the juvenile court adjudicated G.M. as a

delinquent child in 2005, when he was 16 years old.               According to the

jurisdictional statutes above, G.M. was considered a “child” until he reached the

age of 21. On August 17, 2009, at 12:01 a.m., G.M. attained the age of 21 and

therefore was no longer considered a child within the meaning of R.C.

2152.02(C)(6). See State v. Yarger, 181 Ohio App.3d 132, 2009-Ohio-543, 908

N.E.2d 462, ¶22 (stating that “an individual becomes a year older at 12:01 a.m. the

day of their birth, rather than at the exact moment of their birth”). On the same

day, the juvenile court proceeded with a hearing to determine G.M.’s sex-offender

classification. On August 18, 2009—the day after G.M.’s 21st birthday—the

juvenile court issued an order classifying him as a Tier III juvenile sex-offender

registrant.

       {¶11} Based on the foregoing authority, R.C. 2151.23(A)(15) and

2152.02(C)(6) clearly limit the jurisdiction of the juvenile court to matters

regarding a child who has been adjudicated a delinquent child until that child

attains the age of 21. Therefore, we must review the relevant statutory provisions

governing juvenile sex-offender classification to determine whether that statute

grants the juvenile court continuing jurisdiction to classify a delinquent child after

the child has attained the age of 21.




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       {¶12} The juvenile court’s order classifying G.M. as a juvenile sex-

offender registrant was issued pursuant to R.C. 2152.83, which provides:

       (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.

(Emphasis added.)

       {¶13} Prior to issuing an order classifying a delinquent child as a juvenile

sex-offender registrant, the juvenile court must comply R.C. 2152.831(A), which

provides:

       If, on or after January 1, 2008, a juvenile court adjudicates a child a
       delinquent child and classifies the child a juvenile offender registrant
       pursuant to section 2152.82 or 2152.83 of the Revised Code, before
       issuing the order that classifies the child a juvenile offender
       registrant the court shall conduct a hearing to determine whether to
       classify the child 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.

(Emphasis added.)

       {¶14} The statutory provisions above clearly grant the juvenile court the

authority to classify a “child” as a juvenile sex-offender registrant. Moreover, the

issuance of the classification order must occur at the time of the delinquent child’s




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release from a secure facility, and the juvenile court must conduct a hearing to

determine the classification tier before issuing the classification order.

       {¶15} In this case, the juvenile court held the classification hearing upon

G.M.’s release from DYS in accordance with the mandates of R.C. 2152.83 and

2152.831(A). However, G.M. argues that at the time of both the hearing and the

classification order, he had already attained the age of 21 and thus was no longer a

child within the parameters or authority of the foregoing classification statutes.

       {¶16} The prosecution argues that G.M. attaining age 21 has no effect on

the juvenile court’s jurisdiction over this matter. In support of this position, the

prosecution maintains that the statute grants the juvenile court continuing

jurisdiction to determine sex-offender classification of a person previously

adjudicated a delinquent child because of a sex offense.             Specifically, the

prosecution directs our attention to the following provision in R.C. 2152.83, the

applicable section governing the issuance of G.M.’s classification order.

       (E) An order issued under division (A) or (B) of this section and any
       determinations included in the order shall remain in effect for the
       period of time specified in section 2950.07 of the Revised Code,
       subject to a modification or termination of the order under section
       2152.84 of the Revised Code, and section 2152.851 of the Revised
       Code applies regarding the order and the determinations. The child's
       attainment of eighteen or twenty-one years of age does not affect or
       terminate the order, and the order remains in effect for the period of
       time described in this division.

(Emphasis added.)



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         {¶17} When reviewing the statutory provision above, it is clear that the

operative language “the child’s attainment of eighteen or twenty-one years of age

does not affect or terminate the order” refers to the classification order issued

under R.C. 2152.83(A). However, it is our conclusion that this language speaks to

the extension and effect, beyond a child’s 21st birthday, to be given to a

classification order that was issued before a child’s 21st birthday. It does not

extend the jurisdiction of the juvenile court to issue the classification order after a

child has attained age 21.1

         {¶18} Therefore, the juvenile court did not have jurisdiction to issue the

classification order once G.M. attained the age of 21 because, at that time, he was

no longer a “child” within the express provisions and scope of the statute.

Consequently, the juvenile court was without authority to issue an order

classifying G.M. as a Tier III juvenile sex-offender registrant under R.C. 2152.83.

         {¶19} We recognize that the legislature may not have anticipated this

result. However, as mentioned earlier, we cannot help but note that trial counsel

for G.M. brought this issue to the attention of the trial court via a motion for early

release, filed in June 2009, some seven weeks prior to G.M.’s 21st birthday.

Nevertheless, the motion was summarily denied. Thus, absent a specific statute


1
  We do not address in this case the issue as to what authority the juvenile court may or may not have after
a child’s 21st birthday to issue orders to enforce or otherwise modify a classification order that was entered
before the child’s 21st birthday.



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that extends the jurisdiction of the juvenile court to issue an order classifying a

delinquent child as a sex-offender registrant after the child has attained 21, we

hold that the provisions in R.C. Chapters 2151 and 2152 specifically limit the

jurisdiction of the juvenile court to issue such an order until the child attains age

21 and not beyond. Based on the foregoing, G.M.’s first assignment of error is

sustained.   Given our determination on his first assignment of error, G.M.’s

remaining assignments of error are hereby rendered moot and are accordingly

overruled.

       {¶20} For all these reasons, the judgment of the Defiance County Court of

Common Pleas, Juvenile Division, is reversed.

                                                                 Judgment reversed

       WILLAMOWSKI, P.J., and ROGERS, J., concur.




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