[Cite as In re J. B., 2016-Ohio-98.]


                                           COURT OF APPEALS
                                        MORROW COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT



                                                      JUDGES:
IN RE:                                                Hon. W. Scott Gwin, P.J.
                                                      Hon. Sheila G. Farmer, J.
                                                      Hon. John W. Wise, J.
         J.B.
                                                      Case No. 15 CA 0002

JUVENILE OFFENDER REGISTRANT                          OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas, Juvenile Division, Case No. 2010 JD
                                                  00181


JUDGMENT:                                         Reversed



DATE OF JUDGMENT ENTRY:                            January 13, 2016



APPEARANCES:

For Appellee                                      For Appellant

DAVID HOMER                                       BROOKE M. BURNS
ASSISTANT PROSECUTOR                              ASSISTANT STATE PUBLIC DEFENDER
60 East High Street                               250 East Broad Street, Suite 1400
Mt. Gilead, Ohio 43338                            Columbus, Ohio 43215
Morrow County, Case No. 15 CA 0002                                                        2

Wise, J.

      {¶1}   Appellant J.B. appeals the decision of the Fairfield County Court of

Common Pleas, Juvenile Division, which, subsequent to a delinquency determination,

classified him as a juvenile sex offender. The relevant facts leading to this appeal are as

follows:

      {¶2}   On September 13, 2010, in the Morrow County Juvenile Court, Appellant

J.B., born in June 1992, was adjudicated delinquent based on three counts of rape, each

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

In the disposition phase of the case, the court committed appellant to the Ohio

Department of Youth Services (“DYS”) for a minimum period of three years, with a

maximum of his twenty-first birthday.

      {¶3}   On November 17, 2010, the juvenile court classified him as a Tier III

Juvenile Sex Offender registrant. However, appellant thereupon appealed to this Court,

arguing in pertinent part that if a delinquent child is committed to DYS, the determination

of his status as a sexual offender is not to be made until he is released, pursuant to R.C.

2152.83(A). In response, the State conceded that the determination of whether J.B.

should be designated as a juvenile offender registrant subject to classification and

registration requirements had been premature. We vacated the classification order via

an opinion and judgment entry issued September 6, 2011. See In re: J.B., 5th Dist.

Morrow No. 2011-CA-0002, 2011-Ohio-4530.

      {¶4}   On June 28, 2013, appellant’s 21st birthday, a hearing was conducted

before the juvenile court. At this first hearing, the court noted appellant had been

adjudicated a delinquent for a rape offense that would have been a felony of the first
Morrow County, Case No. 15 CA 0002                                                          3


degree if it had been committed by an adult, and he had been sent to the DYS until age

21. The court stated: "So now that he is released we are going through this procedure."

Tr. at 5.

      {¶5}   Counsel for appellant argued at the first hearing that it was now too late to

classify appellant as juvenile sex offender because it was his 21st birthday. Counsel

admitted that "if he were here yesterday I would have nothing to say to this Court except

to fight really hard to show this Court how well he did at DYS and argue for a lower

classification." Tr. at 9. The court noted the fact that appellant was still in the custody of

DYS on the date of the hearing. Tr. at 19. It stayed the order of classification until further

order of the court, such that appellant did not then have a duty to start to register with

the proper authorities. Tr. at 25.

      {¶6}   On March 19, 2015, a second registration hearing commenced. Appellant

renewed his jurisdictional argument, and proposed modifying the registration to a Tier II.

Appellant testified on his own behalf, telling the court he lived with his parents and

worked in Lexington, Ohio, although he had had an OVI misdemeanor in 2014.

      {¶7}   On April 13, 2015, the juvenile court issued its sex offender classification

entry. Regarding the jurisdictional issue, the court wrote: “The Court has already ruled

on that matter and believes that the Court's ruling is correct under Ohio law,

distinguishing between a dispositional matter involved in the juvenile case itself and the

classification of a sex offender matter which took place prior to the release of the juvenile

from the custody of the Department of Youth Services, in this case on his 21st" birthday.”

Judgment Entry at 1.
Morrow County, Case No. 15 CA 0002                                                         4


      {¶8}   Nonetheless, the juvenile court reduced appellant's classification from a

Tier Ill to a Tier II sex offender, having noted inter alia that with the exception of an OVI

conviction, appellant "at age 23 *** is functioning reasonably well in society with no

indication of any sexual misconduct." Id. at 1.

      {¶9}   Appellant filed a notice of appeal on May 7, 2015. He herein raises the

following two Assignments of Error:

      {¶10} “I.    THE MORROW COUNTY JUVENILE COURT ERRED WHEN IT

DENIED J.B.'S MOTION TO VACATE HIS CLASSIFICATION AS A JUVENILE SEX

OFFENDER          REGISTRANT      AS       VOID,    BECAUSE     THE    COURT       LACKED

JURISDICTION TO CLASSIFY HIM ON HIS 21ST BIRTHDAY. FOURTEENTH

AMENDMENT TO THE U.S. CONSTITUTION; OHIO CONSTITUTION, ARTICLE I,

SECTION 16.

      {¶11} “II.   THE MORROW COUNTY JUVENILE COURT ERRED WHEN IT

CLASSIFIED J.B. AS A TIER II JUVENILE SEX OFFENDER REGISTRANT SUBJECT

TO COMMUNITY NOTIFICATION. FOURTEENTH AMENDMENT TO THE U.S.

CONSTITUTION; OHIO CONSTITUTION, ARTICLE I, SECTION 16.”

                                               I.

      {¶12} In his First Assignment of Error, appellant contends the trial court erred in

denying his motion to vacate his juvenile sex offender registrant classification on the

basis of lack of jurisdiction. We agree.

      {¶13} R.C. 2152.83(A)(1) states as follows:

             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
Morrow County, Case No. 15 CA 0002                                                        5


      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:

             (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.

      {¶14} In addition, R.C. 2152.02(C)(6) reads in pertinent part as follows:

      {¶15} “The juvenile court has jurisdiction over a person who is adjudicated a

delinquent child or juvenile traffic offender prior to attaining eighteen years of age until

the person attains twenty-one years of age, and, for purposes of that jurisdiction related

to that adjudication, except as otherwise provided in this division, a person who is so

adjudicated a delinquent child or juvenile traffic offender shall be deemed a ‘child’ until

the person attains twenty-one years of age. ***.”

      {¶16} Appellant in the case sub judice relies on State ex rel. Jean–Baptiste v.

Kirsch, 134 Ohio St.3d 421, 983 N.E.2d 302, 2012–Ohio–5697, in which the Ohio
Morrow County, Case No. 15 CA 0002                                                        6


Supreme Court considered a juvenile court’s jurisdiction under R.C. 2152.83(A)(1),

supra. The Supreme Court stated in pertinent part: “Because Jean–Baptiste was

released [from DYS] on the day that he turned 21 and because R.C. 2152.83 specifies

that classification must occur when a child is released from a secure facility, the juvenile

court patently and unambiguously lacks jurisdiction to classify Jean–Baptiste after his

21st birthday, when he was no longer a child.” Id. at 429-430.

        {¶17} We recognize that Jean-Baptiste’s classification hearing was set to take

place a few weeks after he turned twenty-one (see id. at ¶ 2, ¶ 5), whereas appellant

herein was before the juvenile court for classification on his actual 21st birthday.

However, even before the Supreme Court decided Jean-Baptiste, the Third District Court

of Appeals determined that a juvenile court lacks jurisdiction to classify a juvenile

offender as a sex offender registrant under R.C. 2152.83(A)(1) where the court

conducted the classification hearing on the juvenile offender's twenty-first birthday and

the next day. See In re G.M., 3d Dist. Defiance No. 4-09-33, 2010-Ohio-2295, ¶ 4, ¶ 10,

¶ 18.

        {¶18} In response, the State notes we have held that the operation of R.C.

2152.83 provides for the classification of juvenile sexual offender registrants after an

offender's release from a secure facility such as ODYS, as this is not a new proceeding,

but a continuation of the original delinquency case. In re D.R., 5th Dist. Knox No.

13CA27, 2014–Ohio–588; In re D.S., 5th Dist. Licking No. 13–CA–58, 2014–Ohio–867.

However, a review of D.R. and D.S. reveals that those offenders were well short of their

twenty-first birthdays at the time of classification; moreover, the critical issue in both

cases was whether maintaining the classification after age twenty was a violation of due
Morrow County, Case No. 15 CA 0002                                                            7


    process, rather than the question of the juvenile court’s jurisdiction to decide the

    classification after the offender turns twenty-one. The State further mentions In re I. A.,

    140 Ohio St.3d 203, 2014-Ohio-3155, but correctly notes that the Ohio Supreme Court

    therein analyzed R.C. 2152.83(B)(1), not (A)(1).

          {¶19} The State also urges in response that in cases where an offender yet to be

    classified is held at DYS until he or she turns twenty-one, appellant’s position imposes a

    “Catch-22” result. See Appellee’s Brief at 6-7. In other words, a juvenile court has to wait

    until DYS release is complete in order to render a sex offender classification, but if such

    release occurs on or after the offender’s 21st birthday, jurisdiction to classify is lost.

    However, we surmise the solution in such R.C. 2152.83(A)(1) cases is that juvenile

    prosecutors must take steps to arrange release and classification hearings before the

    twenty-first birthday deadline in order to comport with the General Assembly’s statutory

    requirements.

          {¶20} Accordingly, in light of Jean-Baptiste, because appellant herein turned

    twenty-one at the stroke of midnight on June 28, 2013, we hold the juvenile court lost

    jurisdiction to classify him as a juvenile sex offender, and his motion to vacate should

    have been granted.1

          {¶21} Accordingly, appellant’s First Assignment of Error is sustained.




1 In so holding, we decline to follow our rationale in In re B.D., 5th Dist. Guernsey No.
11-CA-27, 970 N.E.2d 1178, 2012-Ohio-2223, ¶ 15, which pre-dated Jean-Baptiste.
Morrow County, Case No. 15 CA 0002                                                     8


                                           II.

      {¶22} In his Second Assignment of Error, appellant challenges the specifics of his

Tier II juvenile sex offender registrant classification and corresponding community

notification aspects.

      {¶23} Based on our previous conclusions, we find the arguments in the Second

Assignment of Error to be moot.

      {¶24} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Juvenile Division, Morrow County, is hereby reversed.



By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.




JWW/d 1224
