[Cite as In re K.S.R., 2012-Ohio-6217.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


IN RE: K.S.R., DELINQUENT CHILD                 :       OPINION

                                                :       CASE NOS. 2011-P-0061
                                                             and 2011-P-0062


Appeals from the Portage County Court of Common Pleas, Juvenile Division, Case
Nos. 2011 JCA 290 and 2011 JCA 292.

Judgment: Reversed and remanded


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee).

Timothy Young, Ohio Public Defender, and Amanda J. Powell, Assistant State Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215-9308 (For
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, K.S.R., appeals from a judgment of the Portage County Court

of Common Pleas, Juvenile Division, adjudicating him as a delinquent for committing

two counts of gross sexual imposition and classifying him a Tier II juvenile sex offender

registrant.

        {¶2}     Two complaints were filed against appellant alleging him to be a

delinquent child, Case Nos. 2011 JCA 290 and 2011 JCA 292. Both complaints alleged

that appellant, who was 16 years old at the time of the offenses, committed sexual acts

against two different 11-year-old girls.      The complaints alleged that appellant was
delinquent on two counts of gross sexual imposition, felonies of the third degree, in

violation of R.C. 2907.05(A)(4), and two counts of rape, felonies of the first degree, in

violation of R.C. 2907.02(A)(1), if committed by an adult.

       {¶3}   Thereafter, an adjudicatory hearing was held. Appellant admitted to both

counts of gross sexual imposition. Specifically, appellant stated that he used his hand

to rub the inner side of each girl’s thigh for the purpose of sexual gratification, and that

although he was unaware of their exact ages, he knew the girls were kids. The juvenile

court dismissed the rape charges on the state’s motion. The court ordered appellant

detained for 30 days for an Ohio Department of Youth Services (“DYS”) evaluation with

a sex offender component that included a probation department interview and a

psychological department review.

       {¶4}   A dispositional hearing was subsequently held. Appellant was committed

to the custody of the DYS for concurrent terms of not less than six months, and no

longer than his 21st birthday. The court also classified appellant as a mandatory Tier II

juvenile sex offender registrant. See R.C. 2950.01(F)(1)(c)(Tier II sex offender means,

inter alia, a violation of (A)(4) of section 2907.05). Appellant filed timely appeals, Case

Nos. 2011-P-0061 and 2011-P-0062. This court, sua sponte, consolidated both cases

for purposes of briefing, oral argument, and disposition. Appellant asserts the following

four assignments of error:

       {¶5}   “[1.] The trial court erred when it classified Kyle R. as a juvenile offender

registrant because it did not make that determination upon his release from a secure

facility, in violation of R.C. 2152.83(A)(1).




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       {¶6}   “[2.] The juvenile court abused its discretion when it classified Kyle R. as a

tier II juvenile offender registrant when it made that determination based solely on Kyle’s

offenses.

       {¶7}   “[3.] The juvenile court erred when it classified Kyle R. as a tier II juvenile

offender registrant because the application of R.C. 2152.83 to him violates his right to

equal protection under the law in violation of the Fourteenth Amendment to the United

States Constitution; Article I, Section 2 of the Ohio Constitution.

       {¶8}   “[4.] Kyle R. 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 object to the timing of Kyle’s classification

hearing and failed to argue against a tier II classification.”

       {¶9}   This court has recently addressed these same four issues in a very similar

case, In re J.A.D., II, 11th Dist. No. 2012-P-0006, 2012-Ohio-5226. In J.A.D., a juvenile

who was 17 years old at the time of the offense admitted to one charge of rape in

violation of R.C. 2907.02(A)(1)(b), a first-degree felony if committed by an adult. The

trial court accepted the admission. Id. at ¶2. The juvenile court then committed appellant

to the custody of the DYS for not less than two years and no longer than his 21st

birthday. The court further classified him as a Tier III juvenile offender registrant. Id. On

appeal, the appellant in J.A.D. submitted the same issues for our review as appellant

has raised in this case. Id. at ¶4, 21-23.

       {¶10} In his first assignment of error, appellant here argues the juvenile court

erred in classifying him as a juvenile offender registrant because it did not make that

determination upon his release from a secure facility, in violation of R.C. 2152.83(A)(1).




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R.C. 2152.83(A)(1) governs when a court is required to classify, for purposes of

registration, a first-time juvenile sex offender that is 16 or 17 at the time the offense was

committed. It provides:

       {¶11} “(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:

       {¶12} “(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.

       {¶13} “(b) The child was sixteen or seventeen years of age at the time of

committing the offense.

       {¶14} “(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.”

       {¶15} Appellant was born on October 23, 1993. The crimes were committed in

July of 2010.    Thus, he was 16 years old at the time he committed the offenses.

Appellant was committed to the custody of the DYS, a secure facility, at the disposition

hearing. Appellant alleges that according to the language of the statute, he should not




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have been classified until his release from the DYS, rather than at the disposition

hearing.

       {¶16} Contrarily, the state contends the trial court possessed the discretion to

either classify appellant at the disposition hearing or upon release from a secure facility.

In support, the state analogizes R.C. 2152.83 (A)(1) with R.C. 2152.83(B)(1), the

subsection addressing the classification of 14 and 15 year old juvenile sex offenders.

Under subsection (B)(1), the juvenile court has the discretion to classify a child sex

offender at either the dispositional stage or upon release from a secure facility. The

state proposes this court should read subsection (A)(1) in the same fashion as

subsection (B)(1). Based on our prior determination in In re J.A.D., we agree with

appellant and reject the state’s argument.

       {¶17} Appellant raised no objection below regarding the June 13, 2011

classification. Thus, we will review appellant’s argument under a plain error analysis.

“It is well established that ‘the failure to object [at the trial court level] constitutes a

waiver of any claim of error relative thereto, unless, but for the error, the outcome of the

[proceeding] clearly would have been otherwise.’ (Emphasis added.)” State v. Schlee,

11th Dist. No. 2004-L-070, 2005-Ohio-5117, ¶28, quoting State v. Underwood, 3 Ohio

St.3d 12, syllabus (1983), citing State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B).

“Furthermore, ‘notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.’” Id., citing State v. Gordon, 11th Dist. No. 92-A-1696, 1996 Ohio App. LEXIS

1078, *3-4 (Mar. 22, 1996), quoting Long at paragraph three of the syllabus.

       {¶18} On this point, this court stated as follows in In re J.A.D.:




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       {¶19} “R.C. 2152.83(A)(1) mandates that a juvenile court classify the juvenile

offender, for sex offender registration purposes, at one of two times, depending on the

nature of the court’s order. If the juvenile offender is not committed to the custody of a

secure facility, the juvenile court is required to classify the offender as part of its

dispositional order. If, as here, the offender is committed to the custody of a secure

facility, the court is required to classify the offender at the time of the offender’s release

from the secure facility. The clear language of R.C. 2152.83(A)(1) does not give a

juvenile court any discretion as to the timing for classifying a juvenile sex offender for

registration.   Multiple districts in this state have ruled accordingly. In re P.B., 4th Dist.

No. 07CA3140, 2007-Ohio-3937, ¶8 (‘although a juvenile court has discretion as to the

type of disposition it makes, the court apparently does not have discretion to determine

when the delinquent child can be adjudicated a sexual predator. If a child is committed

to DYS, the legislature has decided that such a determination must wait until the child’s

release.’); In re Kristopher W., 5th Dist. No. 2008 AP 03 0022, 2008-Ohio-6075, ¶18

(where juvenile committed to custody of DYS, his classification ‘must be made upon his

release from a secure facility.’); In re H.P., 9th Dist. No. 24239, 2008-Ohio-5848, ¶14

(‘[i]n cases where a juvenile is committed to a secure facility, [the juvenile court] must

wait to classify the juvenile upon his release from the secure facility.’); In re T.D., 12th

Dist. No. CA2010-01-002, 2010-Ohio-6081, ¶28 (‘the timing for sex offender

classification [under R.C. 2152.83(A)(1)] is dictated by the commitment of the child to a

secure facility or the lack thereof.’)

       {¶20} “In the instant matter, the juvenile court issued its classification as part of

the dispositional order. In doing so, the court ran afoul of the unambiguous statutory




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language.   We therefore conclude that the juvenile court committed plain error in

classifying appellant as part of the dispositional order. As a result, we hold the juvenile

court’s order must be reversed and vacated.” Id. at ¶17-18.

       {¶21} Similarly, here, the juvenile court issued its classification of appellant as a

Tier II sex offender as part of the dispositional order.      Accordingly, based on the

foregoing holding in In re J.A.D., we conclude that the juvenile court committed plain

error and that its order must be reversed and vacated. Appellant’s first assignment of

error has merit and is well-taken.

       {¶22} Appellant’s second and third assignments of error each challenge aspects

of the classification order entered as part of appellant’s dispositional order. In his

second assignment of error, appellant contends the juvenile court erred in classifying

him as a Tier II juvenile offender registrant when it made that determination based

solely on his offenses. In his third assignment of error, appellant alleges the juvenile

court erred in classifying him as a Tier II juvenile offender registrant because R.C.

2152.83 is an unconstitutional statute that violates his equal protection rights under the

United States and Ohio Constitutions.

       {¶23} The record reflects that appellant did not raise either of these two issues

during the juvenile court proceedings.

       {¶24} As stated in In re J.A.D.:

       {¶25} “Pursuant to our analysis of appellant’s first assignment of error, the trial

court lacked authority to classify appellant via the dispositional order. That order is

therefore vacated and appellant’s classification must be postponed until he is released

from DYS. Because appellant cannot be classified until his release, any challenge to




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the substance of the trial court’s erroneous classification or the constitutionality of the

scheme is premature and not ripe for review.” Id at ¶24. (Emphasis added).

       {¶26} Accordingly, as in In re J.A.D., appellant’s challenge to the substance of

the trial court’s classification of him as a Tier II sex offender and to the constitutionality

of R.C. 2152.83 is premature and not ripe for review. Moreover, appellant may raise

these issue before the trial court when appellant is classified. Thus, appellant’s second

and third assignments of error will not be considered at this time.

       {¶27} In his fourth assignment of error, appellant maintains his counsel was

ineffective in failing to object to the timing of his classification hearing and in failing to

object to a Tier II classification.

       {¶28} Regarding these arguments, we said in In re J.A.D.:

       {¶29} “Appellant first argues counsel was ineffective for failing to object to the

timing of the court’s classification. This argument is moot.          Specifically, the court

committed plain error when it classified appellant as part of the dispositional order. By

noticing plain error, the prejudice appellant suffered by counsel’s failure to object was

cured. Appellant’s argument on this point is therefore overruled.”

       {¶30} “Appellant next asserts counsel was ineffective for failing to object to the

nature of his classification. Pursuant to our resolution of appellant’s first assignment of

error, however, the trial court’s act of classifying appellant as a Tier III offender was a

nullity. * * * [I]t did not have the authority to so classify appellant when it did and, as a

result, that classification must be vacated. Because appellant cannot be classified until

his release from DYS, counsel’s failure to object to the nature of the classification is

inconsequential. Appellant’s argument, therefore, lacks merit.” Id. at ¶27-28.




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       {¶31} Accordingly, based on the foregoing reasons outlined in In re J.A.D. at

¶27-28, appellant’s fourth assignment of error does not have merit.

       {¶32} For the reasons discussed in this opinion, appellant’s second and third

assignments of error are not yet ripe for resolution. Appellant’s fourth assignment of

error is overruled. However, appellant’s first assignment of error is sustained because

the trial court prematurely classified appellant for purposes of registration in its

dispositional order. Therefore, it is the judgment and order of this court that the portion

of the dispositional order classifying appellant is reversed and vacated. The matter is

remanded to the trial court for further proceedings consistent with this opinion.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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