[Cite as In re R.G., 2011-Ohio-275.]


                                           COURT OF APPEALS
                                          STARK COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT



                                                      JUDGES:
                                                      Hon. Julie A. Edwards, P. J.
IN RE:                                                Hon. Sheila G. Farmer, J.
                                                      Hon. John W. Wise, J.

         R.G.                                         Case No. 2010 CA 00190


         MINOR CHILD                                  OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas, Juvenile Division, Case No. 2009
                                                  JCR 01442


JUDGMENT:                                         Vacated and Remanded



DATE OF JUDGMENT ENTRY:                            January 24, 2011



APPEARANCES:

For Appellee                                      For Appellant

JOHN D. FERRERO                                   BROOKE M. BURNS
PROSECUTING ATTORNEY                              ASSISTANT PUBLIC DEFENDER
RENEE M. WATSON                                   250 East Broad Street
ASSISTANT PROSECUTOR                              Suite 1400
110 Central Plaza South, Suite 510                Columbus, Ohio 43215
Canton, Ohio 44702-0049
Stark County, Case No. 2010 CA 00190                                                       2

Wise, J.

       {¶1}   Appellant R.G. appeals the June 29, 2009, Judgment Entry of the Stark

County Court of Common Pleas, Juvenile Division, which adjudicated him a Tier III

sexual offender subject to statutory registration requirements.

       {¶2}   Appellee is the State of Ohio.

                        STATEMENT OF THE CASE AND FACTS

       {¶3}   On May 20, 2009, the Stark County Prosecutor's Office filed a complaint

alleging that R.G., then fifteen years old, was a delinquent child for one count of rape, in

violation of R.C. §2907.02(A)(2), a felony of the first degree if committed by an adult.

       {¶4}   On August 12, 2009, the juvenile court found R.G. delinquent as charged,

and he was adjudicated delinquent.

       {¶5}   On August 13, 2009, R.G. was committed to the Ohio Department of

Youth Services (DYS) for a minimum period of one (1) year, or until age 21.

       {¶6}   A release date of June 30, 2010, was approved for Appellant.

       {¶7}   On June 21, 2010, and June 29, 2010, the trial court held a hearing to

address Appellant’s registration requirements. At the conclusion of said hearing, the trial

court ordered that R.G. be classified as a "Tier III" juvenile sex offender.

       {¶8}   It is from this classification Appellant appeals, raising the following

assignments of error:

                               ASSIGNMENTS OF ERROR

       {¶9}   “I. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED [R.G.] AS A

TIER III JUVENILE OFFENDER REGISTRANT BECAUSE THE APPLICATION OF

R.C. 2152.83 TO HIM VIOLATES HIS RIGHT TO EQUAL PROTECTION UNDER THE
Stark County, Case No. 2010 CA 00190                                                 3


LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION; ARTICLE I, SECTION 2 OF THE OHIO.

       {¶10} “II. THE JUVENILE COURT ABUSED ITS DISCRETION WHEN IT

CLASSIFIED [R.G.] AS A TIER III JUVENILE SEXUAL OFFENDER REGISTRANT

WHEN THAT FINDING WAS NOT SUPPORTED BY THE EVIDENCE PRESENTED

AT [R.G.]’S CLASSIFICATION HEARING, AND WHEN THE COURT DID NOT

UNDERSTAND THAT IT HAD DISCRETION TO DETERMINE [R.G.]'S TIER LEVEL.

       {¶11} “III. [R.G.] 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,

WHEN COUNSEL FAILED TO ARGUE AGAINST A MANDATORY TIER III

CLASSIFICATION        AND    WHEN      COUNSEL        FAILED   TO   OBJECT   TO   THE

CONSTITUTIONALITY OF SENATE BILL 10 AS APPLIED TO [R.G.].”

                                               I.

       {¶12} In his first assignment of error, Appellant argues R.C. §2152.83 violates

his right to equal protection under the law.

       {¶13} Initially, we note that Appellant failed to raise a challenge to the

constitutionality of R.C. §2152.83 before the trial court.

       {¶14} It is well established that a party cannot raise any new issues or legal

theories for the first time on appeal." Dolan v. Dolan, 11th Dist. Nos. 2000-T-0154 and

2001-T-0003, 2002-Ohio-2440, at ¶ 7, citing Stores Realty Co. v. Cleveland (1975), 41

Ohio St.2d 41, 43, 322 N.E.2d 629. "Litigants must not be permitted to hold their
Stark County, Case No. 2010 CA 00190                                                    4

arguments in reserve for appeal, thus evading the trial court process." Nozik v. Kanaga

(Dec. 1, 2000), 11th Dist. No. 99-L-193, 2000 Ohio App. LEXIS 5615.

       {¶15} This Court has previously addressed and rejected similar claims in In re:

Adrian R. (December 11, 2008), Licking App. No. 08CA17, 2008 Ohio 6581. In that

opinion, this Court rejected the Constitutional challenges raised based upon the holding

and rationale set forth in State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570,

wherein the Supreme Court of Ohio characterized the prior sex offender registration

statutes as civil and remedial rather than criminal. See also State v. Williams (2000), 88

Ohio St.3d 513, 528, 728 N.E.2d 342.

       {¶16} Unless and until the Supreme Court of Ohio reverses or modifies this

decisional construct, we are constrained by the weight of precedent.

       {¶17} Based on our previous holdings, Appellant’s first assignment of error is

overruled.

                                               II.

       {¶18} In his second assignment of error, Appellant argues that the trial court

erred in classifying him as a Tier III juvenile sexual offender. Specifically, Appellant

argues that the trial court failed to consider the appropriate factors in making its

determination and further failed to recognize that it had discretion in determining which

tier level to assign to Appellant. We agree.

       {¶19} This Court has previously reviewed and interpreted R.C. §2142.83 as

vesting the juvenile court with discretion in classifying the juvenile offenders. In the

matter of R.D., Licking App.No. 09 CA 97, 2010-Ohio-2986. This interpretation is

likewise shared by several other appellate districts. Id.
Stark County, Case No. 2010 CA 00190                                                        5


       {¶20} In the instant case, R.G. was fifteen (15) years old at the time the offense

was committed. The trial court determined that Appellant was a juvenile offender

registrant and then went on to find that, because he had been adjudicated delinquent for

rape, it was required to classify him as a Tier III offender.

       {¶21} Upon review of the record, it appears that while the trial court understood

that it had discretion as to juvenile offender registrant classification, the trial court

believed that it had no discretion as to the tier classification, that such classification was

offense-based. We therefore find a remand is necessary for the trial court to exercise

its discretion in this matter.

       {¶22} However, if after a proper classification hearing and consideration of the

factors contained in R.C. §2152.83(D)(1)-(6), the trial court believes that such

classification is warranted based on the evidence in this case, it may re-impose such

classification on remand. The important point, however, is that the trial court does

possess the discretion to make this determination.1

       {¶23} Accordingly, we sustain Appellant’s second assignment of error.

                                               III.

       {¶24} In Appellant’s Third Assignment of Error, he contends that he was denied

effective assistance of counsel. Specifically, he argues that trial counsel was ineffective

for failing to challenge the constitutionality of Senate Bill 10 and for failing to object to

the trial court’s Tier III classification. We disagree.




       1
        We emphasize that this opinion should not be construed to take any position on
the issue of whether R.G. should have been classified as a Tier III sex offender. Rather,
we simply conclude that the trial court erred only to the extent that it believed it did not
have discretion to decide the matter.
Stark County, Case No. 2010 CA 00190                                                   6


      {¶25} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to Appellant. The second prong is whether Appellant was prejudiced by

counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373.

      {¶26} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any

given case, a strong presumption exists that counsel's conduct fell within the wide range

of reasonable, professional assistance. Id.

      {¶27} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court "need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies." Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.

      {¶28} "When counsel's alleged ineffectiveness involves the failure to pursue a

motion or legal defense, this actual prejudice prong of Strickland breaks down into two

components. First, the defendant must show that the motion or defense 'is meritorious,'

and, second, the defendant must show that there is a reasonable probability that the

outcome would have been different if the motion had been granted or the defense

pursued." In re Adrian R., 5th Dist. No. 08-CA-17, 2008-Ohio-6581, at ¶ 23, citing
Stark County, Case No. 2010 CA 00190                                                        7

Kimmelman v. Morrison (1986), 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305

(other citations omitted).

       {¶29} Upon review, under the first prong of the Strickland test, we do not find

counsel's performance at the classification hearing deficient.

       {¶30} We do not find that counsel was ineffective for failing to raise a

constitutional challenge to this statute as this Court has previously rejected such

challenges. See In re Adrian R., Licking App. No. 08 CA 17, 2008-Ohio-6581; In the

Matter of R.D., Licking App. No. 09CA97, 2010-Ohio-2986.

       {¶31} Nor do we find that counsel was ineffective for failing to familiarize himself

with the Tier classification law. Although other districts in Ohio had interpreted the

statute to allow the trial court to have discretion in determining the Tier level to assign to

a juvenile, this Court did not join such decisions until In the Matter of R.D., Licking App.

No. 09CA97, 2010-Ohio-2986, which was decided on June 28, 2010. As R.G.’s hearing

was held on June 29, 2010, the benefit of such decision was most likely not available to

him.

       {¶32} Furthermore, counsel for R.G. did argue against registration in this case.

       {¶33} Accordingly, we overrule R.G.'s third assignment of error.
Stark County, Case No. 2010 CA 00190                                               8


       {¶34} Based on the foregoing, we hereby vacate R.G.'s classification and this

case is remanded to the Court of Common Pleas, Juvenile Division, Stark County, Ohio,

for a reclassification hearing.


By: Wise, J.

Edwards, P. J., and

Farmer, J., concur.



                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
JWW/d 1229
Stark County, Case No. 2010 CA 00190                                          9


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT




IN RE:                                  :
                                        :
         R.G.                           :        JUDGMENT ENTRY
                                        :
         MINOR CHILD                    :        Case No. 2010 CA 00190




         For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is

vacated and remanded.

         Costs assessed to Appellant.




                                        ___________________________________


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                                        ___________________________________

                                                         JUDGES
