[Cite as In re Messmer, 2010-Ohio-1088.]




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




IN THE MATTER OF:
                                                         CASE NO. 16-09-17
        JUSTIN A. MESSMER,

ADJUDICATED DELINQUENT CHILD.                            OPINION




                Appeal from Wyandot County Common Pleas Court
                                Juvenile Division
                           Trial Court No. A 2071139

                                     Judgment Affirmed

                           Date of Decision: March 22, 2010




APPEARANCES:

        Amanda J. Powell for Appellant

        Douglas D. Rowland for Appellee
Case No. 16-09-17


ROGERS, J.

       {¶1} Defendant-Appellant, Justin Messmer, appeals from the judgment of

the Court of Common Pleas of Wyandot County, Juvenile Division, designating

him a Tier II sex offender. On appeal, Messmer argues that the trial court abused

its discretion in classifying him as a Tier II sex offender based on a finding that the

classification was mandated by his offense; that the application of Senate Bill 10

(“S.B. 10”) to his case resulted in a violation of his due process rights and right to

equal protection under the United States and Ohio Constitutions; and, that S.B.

10’s application violated the Ex Post Facto Clause of the United States

Constitution and the Retroactivity Clause of the Ohio Constitution. Based on the

following, we affirm the judgment of the trial court.

       {¶2} In September 2007, the Upper Sandusky Police Department filed a

complaint alleging Messmer was a delinquent child on one count of gross sexual

imposition in violation of R.C. 2907.05(A)(4) and 2152.02(F), a felony of the third

degree if committed by an adult.       The complaint arose from allegations that

Messmer had sexual contact with his eight year-old sister. Subsequently, the

juvenile court entered a denial of the allegation on Messmer’s behalf.

       {¶3} In October 2007, Messmer withdrew his denial to the complaint and

entered an admission to the charge of gross sexual imposition, with the juvenile

court accepting the admission and adjudicating him a delinquent child.



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      {¶4} In January 2008, the juvenile court proceeded to disposition,

classifying Messmer as a Tier II sex offender, committing him to the Department

of Youth Services (“DYS”) for a minimum period of six months, and up to a

maximum period not to exceed his twenty-first birthday, and ordering him to

complete fifty hours of community service and to have no contact with a juvenile

without adult supervision.

      {¶5} In September 2008, this Court reversed the judgment of the juvenile

court in In re Messmer, 3d Dist. No. 16-08-03, 2008-Ohio-4955, finding that

Messmer’s admission to the charge of gross sexual imposition was not knowing,

voluntary, and intelligent because the juvenile court failed to comply with Juv.R.

29(D) in accepting Messmer’s admission.

      {¶6} In October 2008, Messmer re-entered his admission to the charge of

gross sexual imposition, and the juvenile court accepted the admission and

adjudicated him a delinquent child. Thereafter, Messmer was again committed to

DYS for a minimum period of six months, and up to a maximum period not to

exceed his twenty-first birthday, and ordered to complete fifty hours of community

service and to have no contact with a juvenile without adult supervision.

      {¶7} In August 2009, the juvenile court conducted a juvenile sexual

offender designation hearing, in which it categorized Messmer as a Tier II sexual

offender.



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      {¶8} It is from the juvenile court’s sexual offender designation that

Messmer appeals, presenting the following assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
      FOUND THAT JUSTIN M’S CLASSIFICATION AS A TIER II
      JUVENILE SEX OFFENDER REGISTRANT WAS OFFENSE-
      BASED, IN VIOLATION OF R.C. 2950.01(E)-(G). (A-7);
      (T.PP. 2-6).

                          Assignment of Error No. II

      THE TRIAL COURT ERRED WHEN IT FOUND SENATE
      BILL 10 CONSTITUTIONAL AS APPLIED TO JUSTIN M.,
      AS THE APPLICATION OF SENATE BILL 10 TO JUSTIN
      VIOLATES HIS RIGHT TO DUE PROCESS AS
      GUARANTEED BY THE 14TH AMENDMENT TO THE
      UNITED STATES CONSTITUTION AND ARTICLE I,
      SECTION 16 OF THE OHIO CONSTITUTION. (A-7); (T.PP.
      5-6).

                          Assignment of Error No. III

      THE RETROACTIVE APPLICATION OF SENATE BILL 10
      TO JUSTIN 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. (A-7); (T.PP. 2-6).

                          Assignment of Error No. IV

      THE JUVENILE COURT ERRED WHEN IT APPLIED
      SENATE BILL 10 TO JUSTIN 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 I,
      SECTION 2 OF THE OHIO CONSTITUTION. (A-7); (T.PP. 2-
      6).


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       {¶9} Due to the nature of Messmer’s arguments, we elect to address

assignments of error two and three together.

                             Assignment of Error No. I

       {¶10} In his first assignment of error, Messmer argues that the juvenile

court abused its discretion when it classified him as a Tier II sex offender.

Specifically, he contends that the juvenile court mistakenly believed that the

classification was offense-based and mandatory, when, in fact, it had the discretion

to determine his classification. We disagree.

       {¶11} S.B. 10 was enacted in June 2007, with an effective date of January

1, 2008, and amended the sexual offender classification system found in former

R.C. 2950.    In re Gant, 3d Dist. No. 1-08-11, 2008-Ohio-5198, ¶11, appeal

accepted for review, 3/25/2009 Case Announcements, 2009-Ohio-1296. Under

the prior classification system, the trial court determined whether the offender fell

into one of three categories: (1) sexually oriented offender, (2) habitual sex

offender, or (3) sexual predator. Former R.C. 2950.09; State v. Cook, 83 Ohio

St.3d 404, 407, 1998-Ohio-291. In determining whether to classify an offender as

a sexual predator, former R.C. 2950.09(B)(3) provided the trial court with

numerous factors to consider in its determination. In re Smith, 3d Dist. No. 1-07-

58, 2008-Ohio-3234, ¶28, appeal accepted for review, 12/8/2008 Case



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Case No. 16-09-17


Announcements, 2008-Ohio-6166.             Additionally, R.C. 2950.04 imposed

registration requirements for sexual offenders.

       {¶12} In contrast, S.B. 10 requires the trial court to designate the offender

as either a Tier I, II, or III sex offender. R.C. 2950.01; Gant, 2008-Ohio-5198, at

¶15. The new classification system places a much greater limit on the discretion

of the trial court to categorize the offender, as S.B. 10 requires the trial court to

simply place the offender into one of the three tiers based on the offense. Id. A

portion of the requirements for a Tier II classification are as follows:

       F) “Tier II sex offender/child-victim offender” means any of
       the following:

       (1) A sex offender who is convicted of, pleads guilty to, has
       been convicted of, or has pleaded guilty to any of the following
       sexually oriented offenses:

       ***

       (c) A violation of division (A)(4) of section 2907.05 or of
       division (A)(1) or (2) of section 2907.323 of the Revised Code;

R.C. 2950.01(F)(1)(c).      Accordingly, the trial court has no discretion in

designating the offender as a Tier I, II, or III sex offender; it must merely classify

the offender according to the offense committed. See Smith, 2008-Ohio-3234, at

¶31; Gant, 2008-Ohio-5198, at ¶15; Downing v. State, 3d Dist. No. 8-08-29, 2009-

Ohio-1834, ¶10.




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       {¶13} Here, Messmer was adjudicated a delinquent child due to his

admission to gross sexual imposition in violation of R.C. 2907.05(A)(4).

Accordingly, pursuant to R.C. 2950.01(F)(1)(c), the juvenile court was required to

classify Messmer as a Tier II sex offender. Consequently, we find there to be no

error in the juvenile court’s classification of Messmer as a Tier II sex offender.

       {¶14} Accordingly, we overrule Messmer’s first assignment of error.

                        Assignments of Error Nos. II and III

       {¶15} In his second and third assignments of error, Messmer argues that

the juvenile court’s application of S.B. 10 to designate him as a Tier II sex

offender violated his due process rights under the United States and Ohio

Constitutions, and violated the Ex Post Facto Clause of the United States

Constitution and the Retroactivity Clause of the Ohio Constitution. Specifically,

Messmer contends that S.B. 10’s elimination of the juvenile court’s discretion in

designating sex offenders results in criminal sanctions for juvenile offenders and

eliminates due process protections afforded by case-by-case designations.

Additionally, Messmer also asserts that, due to S.B. 10’s application to offenses

that occurred prior to its enactment, and due the General Assembly’s penal

objective in promulgating the statute, S.B. 10 violates the Ex Post Facto Clause of

the United States Constitution and the Retroactivity Clause of the Ohio

Constitution.



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       {¶16} “An enactment of the General Assembly is presumed to be

constitutional, and before a court may declare it unconstitutional it must appear

beyond a reasonable doubt that the legislation and constitutional provisions are

clearly incompatible.” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St.

142, paragraph one of the syllabus.       “That presumption of validity of such

legislative enactment cannot be overcome unless it appear[s] that there is a clear

conflict between the legislation in question and some particular provision or

provisions of the Constitution.” Xenia v. Schmidt (1920), 101 Ohio St. 437,

paragraph two of the syllabus.

       {¶17} A statute’s constitutionality can be challenged on its face or on the

particular set of facts to which the statute has been applied. Harold v. Collier, 107

Ohio St.3d 44, 2005-Ohio-5334, ¶37, citing Belden v. Union Cent. Life Ins. Co.

(1944), 143 Ohio St. 329, paragraph four of the syllabus. When a statute is

challenged on its face, the challenger must demonstrate that no set of

circumstances exist under which the statute would be valid. Id., citing United

States v. Salerno (1987), 481 U.S. 739, 745. The fact that the statute could operate

unconstitutionally under some given set of facts or circumstances is insufficient to

render it wholly invalid. Id. “Conversely, when a statute is challenged as applied,

the challenger must establish by clear and convincing evidence an existing set of

facts that renders the statute invalid when applied to those facts.” Smith v. Jones,



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175 Ohio App.3d 705, 2007-Ohio-6708, ¶14, citing Harold, 107 Ohio St.3d 44, at

¶38.

       {¶18} Here, Messmer challenges the constitutionality of S.B. 10 as applied

to his case.   This Court has previously addressed the issues of whether the

application of S.B. 10 violates a defendant’s due process rights under the Ohio and

United States Constitutions, and whether it violates the Ex Post Facto Clause of

the United States Constitution and the Retroactivity Clause of the Ohio

Constitution, and has continually found there to be no such constitutional

violations. See Smith, 2008-Ohio-3234; Gant, 2008-Ohio-5198; Downing, 2009-

Ohio-1834; Holcomb v. State, 3d Dist. Nos. 8-08-23, 8-08-24, 8-08-25, 8-08-26;

2009-Ohio-782; In re Copeland, 3d Dist. No. 1-08-40, 2009-Ohio-190.

Consequently, because this Court has found that S.B. 10 does not run afoul of

these constitutional provisions, we are now bound by the principle of stare decisis

to our prior decisions. See Copeland, 2009-Ohio-190, at ¶11.

       {¶19} Accordingly, we overrule Messmer’s second and third assignments

of error.

                           Assignment of Error No. IV

       {¶20} In his fourth assignment of error, Messmer argues that the

application of S.B. 10 to his case results in a violation of his right to equal

protection under the United States and Ohio Constitutions.        Specifically, he



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contends that S.B. 10’s penalty scheme based upon the offender’s age bears no

rational relation to a legitimate government interest and, therefore, runs afoul of

the United States and Ohio Constitutions. We disagree.

       {¶21} As set forth in our disposition of Messmer’s second and third

assignments of error, all legislative enactments are presumed constitutional, and a

challenge to the constitutionality of a statue can only prevail when the challenger

demonstrates unconstitutionality beyond a reasonable doubt. State v. Lowe, 112

Ohio St.3d 507, 2007-Ohio-606, ¶17, citing Klein v. Leis, 99 Ohio St.3d 537,

2003-Ohio-4779, ¶4.       Additionally, we note that Messmer challenges the

constitutionality of S.B. 10 on its face and as applied to him.

       {¶22} In order to determine the constitutionality of a statute under the

equal protection clause, we must first decide whether a fundamental right or

suspect class is involved. Conley v. Shearer, 64 Ohio St.3d 284, 289, 1992-Ohio-

133. ‘“A statutory classification which involves neither a suspect class nor a

fundamental right does not violate the Equal Protection Clause of the Ohio or

United States Constitutions [sic] if it bears a rational relationship to a legitimate

governmental interest.’” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-

Ohio-6505, ¶8, quoting Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27,

29. Under rational basis review, the judgment of the General Assembly is granted

substantial deference. Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122



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Ohio St.3d 56, 2009-Ohio-1970, ¶15, citing State v. Williams, 88 Ohio St.3d 513,

531, 2000-Ohio-428.       Furthermore, rational basis review only requires a

reasonable justification for the classification, even if the classifications are

imprecise. Groch v. Gen. Motors Corp, 117 Ohio St.3d 192, 2008-Ohio-546, ¶82.

       {¶23} Here, Messmer asserts a violation of equal protection on the basis

that S.B. 10 impermissibly classifies sexual offenders according to age. However,

the suspect classes have been traditionally defined as race, sex, religion, and

national origin, Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360, 362,

1995-Ohio-298, with age being excluded. Cleveland v. Trzebuckowski, 85 Ohio

St.3d 524, 1999-Ohio-285, fn2. Accordingly, we will analyze whether S.B. 10’s

classification scheme bears a rational relationship to a legitimate government

interest.

       {¶24} Under R.C. 2152.83(A)(1), a juvenile court is required to classify a

juvenile as a sex offender where three conditions are met. One of those conditions

is that the juvenile was sixteen or seventeen years of age at the time of committing

the offense. However, pursuant to R.C. 2152.83(B)(1), the juvenile court has the

discretion to conduct a hearing to determine if the juvenile should be classified as

a sex offender when three conditions are met, one of which is that the juvenile was

fourteen or fifteen years of age at the time of committing the offense.

Accordingly, whether the juvenile court has discretion to or is required to classify



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a juvenile as a sex offender is partly based upon the age of the juvenile at the time

of committing the offense.

       {¶25} The General Assembly’s reasoning behind the promulgation of sex

offender classifications and punishments is set forth in R.C. 2950.02, which

provides, in pertinent part:

       If the public is provided adequate notice and information about
       offenders and delinquent children who commit sexually oriented
       offenses or who commit child-victim oriented offenses, members
       of the public and communities can develop constructive plans to
       prepare themselves and their children for the offender’s or
       delinquent child’s release from imprisonment, a prison term, or
       other confinement or detention. * * *

       ***

       Sex offenders and child-victim offenders pose a risk of engaging
       in further sexually abusive behavior even after being released
       from imprisonment, a prison term, or other confinement or
       detention, and protection of members of the public from sex
       offenders and child-victim offenders is a paramount
       governmental interest.

R.C. 2950.02(A)(1),(2).

       {¶26} Accordingly, if the purpose of sex offender classification is to notify

and protect the public due to the likelihood of recidivism among sex offenders, it

is likely the General Assembly concluded that the lower the age of the offender,

the reduced likelihood of recidivism, thereby granting the juvenile court discretion

in determining whether a sex offender classification is needed when the offender is




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younger.   Consequently, we find that this age classification bears a rational

relationship to a legitimate government interest.

       {¶27} Accordingly, we overrule Messmer’s fourth assignment of error.

       {¶28} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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