[Cite as In re R.H., 2016-Ohio-7379.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



IN THE MATTER OF: R.H.                      :       JUDGES:
                                            :       Hon. Sheila G. Farmer, P.J.
                                            :       Hon. W. Scott Gwin, J.
                                            :       Hon. John W. Wise, J.
                                            :
                                            :
                                            :       Case No. 2016CA00078
                                            :
                                            :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Family Court Division, Case
                                                    No. 2015JCR01594



JUDGMENT:                                           Remanded




DATE OF JUDGMENT:                                   October 17, 2016




APPEARANCES:

For Appellee                                        For Appellant

JOHN D. FERRERO                                     CHARYLYN BOHLAND
Prosecuting Attorney                                250 East Broad Street
By: RENEE M. WATSON                                 Suite 1400
Assistant Prosecutor                                Columbus, OH 43215
110 Central Plaza, South – Suite 510
Canton, OH 44702-0049
Stark County, Case No. 2016CA00078                                                       2


Farmer, P.J.

       {¶1}    On December 15, 2015, appellant, R.H., age sixteen, pled true to one

count of rape in violation of R.C. 2907.02. A disposition and registration hearing was

held on March 1, 2016. By judgment entry filed March 2, 2015, the trial court remanded

appellant to the Multi-County Juvenile Attention Center pending transfer to the

Department of Youth Services for a minimum period of one year, but recommended

appellant be placed at Paint Creek, a staff secured community based correctional

facility. In a separate filing on same date, the trial court also classified appellant as a

Tier III juvenile offender registrant.

       {¶2}    In a judgment entry filed March 17, 2016, the trial court remanded

appellant to the Multi-County Juvenile Attention Center pending transfer to the

Department of Youth Services for a minimum of one year to a maximum of appellant

attaining the age of twenty-one, and ordered appellant be conveyed and delivered to

Indian River Juvenile Correctional Facility, a secured facility.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶4}    "THE JUVENILE COURT ERRED WHEN IT CLASSIFIED R.H. AS A

JUVENILE OFFENDER REGISTRANT BECAUSE IT DID NOT MAKE THAT

DETERMINATION UPON HIS RELEASE FROM THE SECURE FACILITY, IN

VIOLATION OF R.C. 2152.83(A)(1)."
Stark County, Case No. 2016CA00078                                                        3


                                              II

        {¶5}   "THE JUVENILE COURT ERRED WHEN IT CLASSIFIED R.H. AS A

JUVENILE OFFENDER REGISTRANT BECAUSE R.H.'S STATUS AS A MANDATORY

REGISTRANT UNDER R.C. 2152.83(A) VIOLATES THE EQUAL PROTECTION

CLAUSES OF THE U.S. AND OHIO CONSTITUTIONS."

                                              III

        {¶6}   "R.H. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION."

                                               I

        {¶7}   Appellant claims the trial court erred in classifying him as a juvenile

offender registrant when he had yet to be released from a secured facility. We agree in

part.

        {¶8}   R.C. 2152.83 governs order classifying child as juvenile offender

registrant. Subsection (A)(1) states the following:



               (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 if all of the following apply:
Stark County, Case No. 2016CA00078                                                    4


              (a) The act for which the child is or was 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.

              (b) The child was sixteen or seventeen years of age at the time of

       committing the offense.

              (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.



       {¶9}   During the disposition and registration hearing held on March 1, 2016, the

trial court ordered the following (March 1, 2016 T. at 14-15):



              THE COURT: All right [R.] I am going to commit you to the

       Department of Youth Services for a minimum period of one year. They

       can keep you longer than that.        I'm going to recommend that they

       ah…ah…um house you at Paint Creek which is a staff secure facility and

       it specializes in sex offender treatment. So hopefully you will get what you

       need there. I am going to order you to complete sex offender treatment

       while you are there. You are not to have any contact with the victim or

       any children under the age of eighteen until this Order has been

       modified.***Um as far as the Registration is concerned I feel that I cannot

       in good conscience ah have you back in the community at this point
Stark County, Case No. 2016CA00078                                                    5


       without ah community notifications. So I am going to register you as a

       Tier 3 with community registration or community notification. Um and that

       will…I need to go through this form with you to make sure that you

       understand what the registration requires you to do. Now while you are in

       DYS ah custody you will they will ah assist you with fulfilling your

       registration obligation but when you are not in their custody then you will

       have to do that with the assistance of your parents. And it's very important

       that you follow these rules exactly. I'm going to give you a copy of the

       rules before you go…um again DYS will help you at the beginning but ah

       it's very important that you understand these rules.



       {¶10} In its judgment entry filed March 17, 2016, the trial court stated the

following:



             The juvenile was found to be delinquent and prior order in case

       number 2015JCR01594 is hereby imposed. Said juvenile is COMMITTED

       to the OHIO DEPARTMENT OF YOUTH SERVICES for a minimum of

       ONE (1) YEAR and no more than said youth's attainment of the age of

       twenty-one (21) years. Said acts which if committed by an adult would

       constitute a felony, to wit: ONE (1) COUNT OF RAPE (F1), SECTION

       2907.02A1A OF THE OHIO REVISED CODE.

             ***
Stark County, Case No. 2016CA00078                                                     6


             IT IS FURTHER ORDERED that said juvenile shall be REMANDED

      to the Multi-County Juvenile Attention Center, a place of juvenile

      detention, pending transfer to Department of Youth Services. That the

      juvenile be detained for a period not to exceed ninety (90) days. Juvenile

      has served a total of 22 days in detention.***

             IT IS FURTHER ORDERED that a warrant be issued to the Sheriff

      of Stark County to convey and deliver said juvenile to said place of

      commitment to INDIAN RIVER JUVENILE CORRECTIONAL FACILITY,

      MASSILLON, OHIO, as herein above provided as soon as such juvenile

      can be accepted and received by said place of commitment and that due

      return thereof be made to this Court.



      {¶11} It is clear that the trial court assumed appellant would be transferred by

the Department of Youth Services to Paint Creek, a non-secured facility. In re Mudrick,

5th Dist. Stark No. 2007CA00038, 2007-Ohio-6800. However, the record on appeal

only demonstrates that appellant was conveyed to Indian River Juvenile Correctional

Facility, a secured facility. See Warrant to Convey filed March 17, 2016.

      {¶12} Although some six and one-half months have passed, the record only

shows that appellant was placed in a secured facility and the classification of appellant

as a juvenile registrant may have been premature.

      {¶13} The matter is remanded to the trial court to determine where appellant is

committed. If appellant remains in a secured facility, the juvenile offender registrant
Stark County, Case No. 2016CA00078                                                      7


classification is vacated; if appellant is in a staff secured/non-secured facility, the

classification stands.

       {¶14} Assignment of Error I is remanded for further determination.

                                            II

       {¶15} Appellant claims R.C. 2152.83(A) violates the Equal Protection Clause of

the United States and Ohio Constitutions. Pursuant to our opinion in In Re: D.D., 5th

Dist. Stark No. 2015CA0043, 2015-Ohio-3999, this assignment of error is denied. See

also In re M.R., 7th Dist. Jefferson No. 13 JE 30, 2014-Ohio-2623, aff'd in part and

dismissed in part, ___ Ohio St.3d ___, 2016-Ohio-5451.

                                            III

       {¶16} Appellant claims he was denied the effective assistance of counsel.

Based upon our decision in Assignment of Error I, we find this assignment to be moot.

       {¶17} The judgment of the Court of Common Pleas of Stark County, Ohio,

Family Court Division is hereby remanded.

By Farmer, P.J.

Gwin, J. and

Wise, J. concur.

SGF/sg 106
