[Cite as In re K.W., 2012-Ohio-1179.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                             :   JUDGES:
IN RE: K. W.                                 :   W. Scott Gwin, P.J.
                                             :   John W. Wise, J.
                                             :   Julie A. Edwards, J.
                                             :
                                             :   Case No. 2011AP050019
                                             :
                                             :
                                             :   OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from Tuscarawas County
                                                  Court of Common Pleas, Juvenile
                                                  Division, Case No. 08JD00001

JUDGMENT:                                         Reversed and Remanded

DATE OF JUDGMENT ENTRY:                           March 19, 2012

APPEARANCES:

For State of Ohio                                 For K. W.

RYAN D. STYER                                     AMANDA J. POWELL
Tuscarawas County Prosecutor                      Assistant State Public Defender
Tuscarawas County Prosecutor’s Office             250 East Broad Street, Suite 1400
Courthouse Annex                                  Columbus, Ohio 43215
125 E. High Avenue
New Philadelphia, Ohio 44663
[Cite as In re K.W., 2012-Ohio-1179.]


Edwards, J.

        {¶1}    Appellant, K. W., appeals from the April 21, 2011, Judgment Entry of the

Tuscarawas County Court of Common Pleas, Juvenile Division.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    On January 2, 2008, a delinquency complaint was filed in the Tuscarawas

County Court of Common Pleas, Juvenile Division, alleging that appellant, who was

born on April 24, 1990, committed six counts of rape (counts one, two, five, six, nine,

and ten) in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree if committed by

an adult, and six counts of gross sexual imposition (counts three, four, seven, eight,

eleven and twelve) in violation of 2907.05(A)(4), felonies of the third degree if committed

by an adult. The offenses were alleged to have been committed between January 1,

2006 through May 6, 2006 and June 15, 2007 through August 1, 2007.

        {¶3}    At his arraignment on January 3, 2008, appellant admitted the charges set

forth in the complaint. As memorialized in a Judgment Entry filed on January 4, 2008,

the trial court found that appellant was a delinquent child as defined by R.C. 2152.02

and ordered that the matter be continued to January 18, 2008, for disposition and to

determine appellant's sexual offender classification.

        {¶4}    Pursuant to a Judgment Entry filed on February 22, 2008, the trial court

committed appellant to the Ohio Department of Youth Services (DYS) for a minimum of

three years and a maximum to the age of twenty-one on count one (rape) and to a

minimum of two (2) years and a maximum to age twenty-one on count five (rape). The

trial court ordered these commitments to run consecutively. The trial court also

committed appellant to a minimum of three (3) years and a maximum to age twenty-one
Tuscarawas County App. Case No. 2011AP050019                                            3


on counts two, six, nine and ten and ordered such commitments to run concurrently with

counts one and five. Finally, the trial court committed appellant for a minimum of six (6)

months and a maximum to age twenty-one on counts three, four, seven, eight, eleven

and twelve and ordered such commitments to run concurrently with counts one and five.

       {¶5}   The trial court, in its February 22, 2008, Judgment Entry, also ordered that

appellant be classified as a Tier III juvenile offender registrant.

       {¶6}   Appellant then appealed, raising the following assignments of error on

appeal:

       {¶7}   “I. THE TRIAL COURT ERRED WHEN IT CLASSIFIED KRISTOPHER W.

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).

       {¶8}   “II. THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO

KRISTOPHER W. AS THE APPLICATION OF SENATE BILL TO KRISTOPHER W.

VIOLATES      HIS    RIGHT     TO    DUE    PROCESS        AS    GUARANTEED    BY    THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

       {¶9}   “III. THE RETROACTIVE APPLICATION OF SENATE BILL 10 TO

KRISTOPHER W. VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED

STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF SECTION 28,

ARTICLE II OF THE OHIO CONSTITUTION.

       {¶10} “IV. KRISTOPHER W. WAS DENIED HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL. FOURTEENTH AMENDMENT TO THE
Tuscarawas County App. Case No. 2011AP050019                                                4


UNITED STATES CONSTITUTION, SECTIONS 10 AND 16, ARTICLE I OF THE OHIO

CONSTITUTION.”

       {¶11} Pursuant to an Opinion filed in In re Kristopher W., 5TH Dist. No.

2008AP030022, 2008-Ohio-6075, this Court held, in relevant part, as follows:

       {¶12} “We recognize that subsection (A)(1) of [R.C. 2152.83] is worded

differently than subsection (B)(1). The General Assembly uses the word ‘shall’ in

subsection (A)(1) rather than the word ‘may.’ Thus, 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. We recognize that courts must follow a statute's plain

language, regardless of the wisdom of the particular statutory provision.' Id at paragraph

8.

       {¶13} “Based on the foregoing, we find that the trial court erred in classifying

appellant as a juvenile offender registrant when it did. Such determination must be

made upon appellant's release from a secure facility.” Id at paragraphs 17-18. We

further found that that the application of Senate Bill 10 to appellant did not violate his

right to due process of law as guaranteed by both the United States and Ohio

Constitutions and that the retroactive application of such Bill, which became effective

January 1, 2008, to him did not violate the ex post facto clause of the United States

Constitution and the retroactivity clause of Section 28, Article II of the Ohio Constitution.

       {¶14} Pursuant to a Judgment Entry filed on December 30, 2008, the trial court

indicated that appellant “will not be classified as a Tier III sex offender as previously
Tuscarawas County App. Case No. 2011AP050019                                           5


ordered by this Court.” The trial court released appellant from all reporting duties that

accompany such classification.

       {¶15} Upon being advised that appellant was being released from the

Department of Youth Services on April 24, 2011, the trial court, as memorialized in a

Judgment Entry filed on March 29, 2011, set a hearing to review appellant’s

classification. The trial court, via a Judgment Entry filed on April 21, 2011, stated as

follows:

       {¶16} “[t]he court…declines to change the previous classification and therefore

said Juvenile will be classified as a Tier III sex offender and subject to community

notification provisions.”

       {¶17} Appellant appealed from the trial court’s April 21, 2011 Judgment Entry,

raising the following assignments of error:

       {¶18} “I. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED WHEN IT

CONDUCTED A HEARING TO REVIEW KRISTOPHER W.’S JUVENILE SEX

OFFENDER CLASSIFICATION.

       {¶19} “II. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED WHEN IT

APPLIED SENATE BILL 10 TO KRISTOPHER W. SECTION 28, ARTICLE II, OHIO

CONSTITUTION; STATE V. WILLIAMS, 129 OHIO (SIC) AT.3D 344, 2011-OHIO-3374,

APPLIED; R.C. 2151.01(B), R.C. 2152.01(A), (B); FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION; AND, ARTICLE I, SECTION 16 OF THE

OHIO CONSTITUTION.”

       {¶20} On November 23, 2011, appellant filed a Motion for Leave to File an

Amended Assignment of Error based on the Ohio Supreme Court’s October 20, 2011,
Tuscarawas County App. Case No. 2011AP050019                                                           6

decision in Cases Held for the Decision in State v. Williams -- N.E.2d --, 957 N.E.2d

289, 2011-Ohio-5348. This Court granted such motion and granted appellee leave until

December 16, 2011 to file a reply brief. Appellee subsequently filed a reply brief.

        {¶21} For purposes of judicial economy, we shall address the assignments of

error out of sequence.

                                                       II

        {¶22} Appellant, in his second assignment of error, argues that S.B. 10 was

unconstitutionally applied to him. We agree.

        {¶23} In State v. Williams, 129 Ohio St.3d 344, 2011–Ohio–3374, 952 N.E.2d

1108, syllabus, the Ohio Supreme Court held that “2007 Am.Sub.S.B. No. 10, as

applied to defendants who committed sex offenses prior to its enactment, violates

Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly

from passing retroactive laws.”

        {¶24} Appellant was alleged to have committed the offenses in this case

between January 1, 2006 through May 6, 2006 and June 15, 2007 through August 1,

2007.1 S.B. 10, a.k.a. the Adam Walsh Act (“the AWA”), was enacted on June 27, 2007,

and made effective on January 1, 2008. Accordingly, and as conceded by appellee,

pursuant to the Supreme Court's ruling in Williams, appellant was improperly

reclassified as a Tier III offender under S.B. 10.

        {¶25} Appellant’s second assignment of error is, therefore, sustained.




1
 We note that in at least one case reversed by the Williams case the offense occurred after July 1, 2007,
                                                       nd
but before January 1, 2008. See State v. Gresham, 2 Dist. No. 22766, 2009-Ohio-3305. As is stated
above, S.B. 10 was enacted on June 27, 2007, and became effective January 1, 2008.
Tuscarawas County App. Case No. 2011AP050019                                                      7


                                                     I

       {¶26} Appellant, in his first assignment of error, argues that the trial court erred

when it conducted a hearing to review appellant’s juvenile sex offender classification.

Appellant specifically argues that the trial court had no authority to conduct a review

hearing rather than an initial classification hearing in accordance with the mandate of

this Court. Appellant also contends that the trial court erred in conducting a review

hearing when appellant had not yet been given a valid juvenile offender sex

classification pursuant to R.C. 2152.83.

       {¶27} Based on our disposition of appellant’s first assignment of error,

appellant’s second assignment of error is moot.2




2
  We note that appellee, in its December 14, 2011, reply brief, indicated that the arguments made in
previous briefs regarding the first assignment of error were moot.
Tuscarawas County App. Case No. 2011AP050019                                           8


      {¶28} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas, Juvenile Division is reversed and this matter is remanded for further proceedings.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/d1220
[Cite as In re K.W., 2012-Ohio-1179.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


IN RE: K. W.                                  :
                                              :
                                              :
                                              :
                                              :
                                              :       JUDGMENT ENTRY
                                              :
                                              :
                                              :
                                              :       CASE NO. 2011AP050019




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

judgment of the Tuscarawas County Court of Common Pleas, Juvenile Division, is

reversed and remanded to the trial court for further proceedings. Costs assessed to

appellee.




                                                  _________________________________


                                                  _________________________________


                                                  _________________________________

                                                               JUDGES
