[Cite as State v. Stidam, 2016-Ohio-7906.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ADAMS COUNTY

STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :             Case No. 15CA1014

        v.                                      :             DECISION AND
                                                              JUDGMENT ENTRY
AARON STIDAM,                                   :

        Defendant-Appellant.                    :             RELEASED: 11/21/2016


                                             APPEARANCES:

Timothy Young, Ohio Public Defender and Stephen P. Hardwick, Assistant Ohio Public
Defender, Columbus, Ohio for appellant.

David Kelley, Adams County Prosecutor and Michele L. Harris, Assistant Adams County
Prosecutor, West Union, Ohio for appellee.



Hoover, J.

        {¶ 1} Defendant-appellant Aaron Stidam (“Stidam”) appeals from the Adams County

Common Pleas Court the portion of his sentence classifying him as a Tier III sex offender. At the

age of 22, Stidam was indicted on two counts of rape. The indictment alleged that Stidam

committed these offenses when he was a juvenile. Through plea negotiations with the State of

Ohio (“State”), Stidam pleaded guilty to two amended counts of sexual battery. The trial court

sentenced Stidam to an aggregate total of five years in prison. Also, the trial court designated

him a Tier III sex offender.

        {¶ 2} Here on appeal, Stidam asserts that his automatic classification as a Tier III sex

offender for offenses he committed as a juvenile violates his due process rights and the
Adams App. No. 15CA1014                                                                              2


prohibitions against cruel and unusual punishment contained in the United States and Ohio

Constitutions. Stidam relies on the Ohio Supreme Court’s decision in In re C.P. 131 Ohio St.3d

513, 2012-Ohio-1446, 967 N.E.2d 729. In In re C.P., the Ohio Supreme Court ruled that

automatic, lifetime sex offender registration for juvenile offenders tried within the juvenile

system violated constitutional protections against cruel and usual punishment, as well as

constitutional rights to due process. Id. at syllabus. Stidam contends that based upon the

reasoning of In re C.P., he should not be subject to automatic lifetime sex offender registration

requirements for offenses he committed as a juvenile just because he was apprehended for those

offenses after the age of 21.

       {¶ 3} In evaluating Stidam’s claims, we determine that the facts here are distinguishable

from those of In re C.P. At no time was Stidam tried for his crimes in the juvenile system.

Accordingly, the reasoning and analysis presented in the Court’s decision in In re C.P. is not

applicable under the facts here. Therefore, for those reasons and the reasons discussed below, we

overrule Stidam’s sole assignment of error. We affirm the judgment of the trial court.

                                    I. Facts and Procedural Posture

       {¶ 4} In October 2014, the Adams County Grand Jury indicted Stidam on two counts of

rape, first degree felonies, in violation of R.C. 2907.02(A)(1)(b). At the time of the indictment,

Stidam was 22 years old. The indictment alleged that the criminal activity took place “[o]n or

about and between April 1, 2008 and April 20, 2009[.]” Therefore, Stidam was either 15 or 16

years old at the time when the offenses occurred. The indictment stated that at the time of the

offenses the victim was a minor under the age of 10.

       {¶ 5} Pursuant to a plea agreement with the State, in September 2015, Stidam pleaded

guilty to two amended counts of sexual battery, second degree felonies, in violation of R.C.
Adams App. No. 15CA1014                                                                                3


2907.03(A)(1). At the change of plea hearing, Stidam admitted on the record that between April

2008 and April 2009, on two occasions, he coerced his eight or nine year old cousin to put his

penis in her mouth. The trial court accepted Stidam’s guilty pleas and found him guilty of the

offenses. Following his guilty pleas, Stidam filed a motion requesting that the trial court (1)

declare the adult sex offender classification statutes unconstitutional; and (2) decline to classify

him under those statutes. In the motion, Stidam argued that the adult sex offender classifications

as applied to him, an adult indicted for crimes he committed as a juvenile, violated his right to

due process and constituted cruel and usual punishment. The State filed a response to Stidam’s

motion.

       {¶ 6} The trial court never filed a separate entry overruling Stidam’s motion. Instead,

during the sentencing hearing on October 2, 2015, the trial court indicated that it declined

Stidam’s motion. The trial court stated:

       I do find though, however, the arguments made to be very compelling of this

       exception that we have in this case as I see it, but otherwise the court sees that it is

       a tier 3 sex offender registrant and at this time I’m not adopting either individually

       to constitutionally challenge the constitutionality or to challenge the jurisdiction

       of an unconstitutional statue [sic]. I’m not going to at this time in this case adopt

       that invitation. While inviting, certainly inviting as I read the memorandum, at

       this time, the court will decline on that.

The trial court sentenced Stidam to an aggregate five-year prison term. Because of Stidam’s

violation of R.C. 2907.03, the trial court classified him as a Tier III sex offender.

       {¶ 7} Stidam now asserts this timely appeal challenging his classification as a Tier III sex

offender.
Adams App. No. 15CA1014                                                                             4


                                     II. Assignment of Error

       {¶ 8} Stidam assigns the following sole assignment of error for our review:

       The trial court erred by requiring Aaron Stidam to register for life as a Tier III Sex

       Offender for an offense he committed as a child. Fifth, Eighth and Fourteenth

       Amendments to the United States Constitution; Article I, Sections 9 and 10 of the

       Ohio Constitution; R.C. 2950.01(G)(1)(a) and 2950.07(B)(1); Sentencing Entry

       (Oct. 2, 2015); T.p. 15 (Oct. 2, 2015).

                                      III. Law and Analysis

       {¶ 9} In his sole assignment of error, Stidam contends that, as applied to him—an adult

indicted for offenses he committed as a juvenile—his Tier III sex offender classification violates

the prohibitions on cruel and unusual punishment and the due process protections contained in

the United States Constitution and the Ohio Constitution. Stidam primarily relies on the Ohio

Supreme Court’s recent decision In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d

729. In In re C.P., the Ohio Supreme Court ruled that “[t]o the extent that it imposes automatic,

lifelong registration and notification requirements on juvenile sex offenders tried within the

juvenile system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual

punishment contained in the [United States Constitution and the Ohio Constitution] and the Due

Process Clause [contained in the United States Constitution and the Ohio Constitution]* * *[.]”

Id. at syllabus. Stidam claims that based on In re C.P., mandatory lifetime registration

requirements for offenses committed as a juvenile also violate his right to due process and the

prohibitions on cruel and unusual punishment.

       {¶ 10} Specifically, Stidam contends that based on the factors examined by the Court in

In re C.P. we should declare his Tier III sex offender classification unconstitutional for the
Adams App. No. 15CA1014                                                                                5


following reasons: (1) a child is just as culpable for a sex offense if he is apprehended

immediately or seven years later; (2) lifetime registration for a childhood offense is equally

severe regardless of when the child is apprehended; (3) the modern juvenile system is almost as

punitive as the adult system; (4) lifetime registration inhibits rehabilitation regardless of when a

person is charged for a childhood offense; (5) lifetime registration serves the goal of

accountability equally poorly regardless of when a child is charged; (6) lifetime registration is a

poor deterrent for a child regardless of when charges are filed; and (7) the need for retribution is

the same regardless of when a child is charged.

       {¶ 11} The State contends that Stidam’s classification as a Tier III sex offender should be

upheld because (1) he is not a juvenile offender because R.C. 2151.23(I) exempted him from the

jurisdiction of the juvenile division of the common pleas court; (2) lifetime sex offender

registration neither constitutes cruel and unusual punishment nor violates Stidam’s rights to due

process and fundamental fairness; and (3) lifetime registration is mandatory pursuant to R.C.

2950.01 et seq.

                              A. Ohio’s Sex Offender Registration

       {¶ 12} In 2007, the General Assembly enacted the Adam Walsh Act, which “repealed

Megan’s Law, effective January 1, 2008, and replaced it with new standards for sex-offender

classification and registration pursuant to the federal Adam Walsh Child Protection and Safety

Act, Section 16901 et seq., Title 42, U.S.Code.” Bundy v. State, 143 Ohio St.3d 237, 2015-Ohio-

2138, 36 N.E.3d 158, ¶ 5. The implementation of the Adam Walsh Act transformed the nature of

the sex offender registration statutes from remedial to punitive. State v. Metcalf, 12th Dist.

Warren No. CA2015-03-022, 2016-Ohio-4923, ¶ 19, citing State v. Williams, 129 Ohio St.3d

344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 21. “Because the AWA is punitive, and thus imposes
Adams App. No. 15CA1014                                                                              6


a punishment, the possibility exists that a sexual offender may be deprived of a protected liberty

interest by virtue of his classification.” Metcalf at ¶ 19. This scheme, which the General

Assembly codified in R.C. Chapter 2950, divides sex offenders into Tier I, Tier II, and Tier III

sex or child-victim offenders. R.C. 2950.01(E) through (G). The sex offender’s classification is

automatically determined by the offense for which a person is convicted and the judge has no

discretion to modify the classification. State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-

4624, 48 N.E.3d 516, ¶ 11. The duration of the offender’s obligation to update his or her personal

information for the registry, as well as the frequency of that duty, depends upon his or her tier

classification.

        {¶ 13} For Tier III sex offenders, the act requires registration and verification of the

offender’s address every 90 days for the remainder of their lifetime. R.C. 2950.06(B)(3). Here,

Stidam was convicted of two counts of sexual battery, second degree felonies, in violation of

R.C. 2907.03(A)(1). Pursuant to R.C. 2950.01(G)(a), the trial court classified Stidam as a Tier III

sex offender. R.C. 2950.01(G)(a) states, “ ‘Tier III sex offender/child-victim offender’ means

any of the following: (a) A violation of section 2907.02 or 2907.03 of the Revised Code.”

                                            B. In Re C.P.

        {¶ 14} In In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729 the Ohio

Supreme Court determined:

        To the extent that it imposes automatic, lifelong registration and notification

        requirements on juvenile sex offenders tried within the juvenile system, R.C.

        2152.86 violates the constitutional prohibition against cruel and unusual

        punishment contained in the Eighth Amendment to the United States Constitution

        and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the
Adams App. No. 15CA1014                                                                             7


        Fourteenth Amendment to the United States Constitution and the Ohio

        Constitution, Article I, Section 16.

Id. at syllabus.

        {¶ 15} In In re C.P., 15 year old juvenile was charged in a multi-count indictment

including charges of rape and kidnapping with sexual motivation. Id. at ¶ 2. The appellant

remained in the juvenile system throughout the proceedings. Id. at ¶ 6. Eventually, the appellant

entered an admission to each charge of the indictment. Id. at ¶ 7. The juvenile court found

appellant to be a delinquent child and designated him as a serious youthful offender (“SYO”)

pursuant to R.C. 2152.13(A)(4)(b). The trial court sentenced appellant to a three-year

commitment to the Ohio Department of Youth Services and a five-year aggregate prison term.

Id. The prison term was stayed pending appellant’s successful completion of his juvenile

sentence. Id. Pursuant to R.C. 2152.86, the court classified appellant as a public-registry-

qualified-juvenile-offender registrant (“PRQJOR”) and automatically classified him as Tier III

sex offender. Id. at ¶ 8.

        {¶ 16} On appeal, appellant argued that R.C. 2152.86 violated his rights to due process

and equal protection and the prohibition against cruel and unusual punishment. Id. at ¶ 9.

Throughout its analysis regarding the cruel and unusual punishment and due process issues, the

Court focused on appellant’s placement within the juvenile system. The Ohio Supreme Court

stated in In re C.P. that “the nature of an SYO disposition requires that the juvenile remain under

the continuing jurisdiction of a juvenile judge[.]” Id. at ¶ 24. The Court explained:

        “ ‘A juvenile charged as a potential serious youthful offender does not face

        bindover to an adult court; the case remains in the juvenile court. Under R.C.

        2152.11(A), a juvenile defendant who commits certain acts is eligible for “a more
Adams App. No. 15CA1014                                                                     8


      restrictive disposition.’ That ‘more restricted disposition’ is a ‘serious youthful

      offender’ disposition and includes what is known as a blended sentence—a

      traditional juvenile disposition coupled with the imposition of a stayed adult

      sentence. R.C. 2152.13. The adult sentence remains stayed unless the juvenile

      fails to successfully complete his or her traditional juvenile disposition. R.C.

      2152.13(D)(2)(a)(iii). Theoretically, the threat of the imposition of an adult

      sentence encourages a juvenile’s cooperation in his own rehabilitation,

      functioning as both carrot and stick.”

      [State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209] at ¶ 18.

      Only further bad acts by the juvenile as he is rehabilitated in the juvenile system

      can cause the stayed adult penalty to be invoked:

      Any adult sentence that the trial court imposes through R.C. 2152.13(D)(2)(a)(i)

      is only a potential sentence—it is stayed pursuant to R.C. 2152.13(D)(2)(a)(iii)

      “pending the successful completion of the traditional juvenile dispositions

      imposed.” R.C. 2152.13(D)(2)(a)(ii) requires the court to impose a juvenile

      disposition when it imposes an adult sentence; how the juvenile responds to that

      disposition will determine whether the stay is lifted on the adult sentence.

      Id. at ¶ 30.

      R.C. 2152.86 changes the very nature of an SYO disposition, imposing an adult

      penalty immediately upon the adjudication. The juvenile is not given the

      opportunity to avoid the adult portion of his punishment by successfully

      completing his juvenile rehabilitation. Instead, he must comply with all of S.B.
Adams App. No. 15CA1014                                                                               9


       10’s reporting and notification requirements for Tier III sexual offenders

       contained in R.C. Chapter 2950.

In re C.P. at ¶¶ 14-16.

       {¶ 17} The issue Stidam now presents is whether the holding of In re C.P. also applies to

offenders who committed offenses as juveniles but were tried as adults because they were

apprehended after they turned 21 years old. Stidam presents the same arguments for his

contentions that the Tier III classification violates both constitutional due process protections and

constitutional prohibitions on cruel and unusual punishment. However, we will address each

constitutional argument separately.

                                      C. Standard of Review

       {¶ 18} Stidam’s argument here on appeal challenges his Tier III sex offender

classification pursuant to R.C. 2950.01(G)(a) as unconstitutional. Such a “challenge focuses on

the particular application of the statute.” State v. Carrick, 131 Ohio St.3d 340, 965 N.E.2d 264,

2012–Ohio–608, ¶ 16. “A statute may be challenged as unconstitutional on the basis that it is

invalid on its face or as applied to a particular set of facts.” State v. Lowe, 112 Ohio St.3d 507,

861 N.E.2d 512, 2007–Ohio–606, ¶ 17. Here, Stidam challenges the statute as unconstitutional as

applied to him, i.e., an adult indicted for offenses he committed as a juvenile.

       {¶ 19} “[S]tatutes enjoy a strong presumption of constitutionality.” State v. Hoover, 123

Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 8. “A statute will be upheld unless the

challenger can meet the burden of establishing beyond a reasonable doubt that the statute is

unconstitutional.” Id. We use a de novo standard of review to assess errors based upon violations

of constitutional law. State v. Burgette, 4th Dist. Athens No. 13CA50, 2014-Ohio-3483, ¶ 10.
Adams App. No. 15CA1014                                                                           10


  D. Stidam’s Classification as a Tier III Sex Offender Does Not Violate His Right to Due

                                              Process.

        {¶ 20} First, we will address Stidam’s claim that his classification as a Tier III sex

offender violates the due process clauses of both the United States and Ohio Constitution. “The

right to procedural due process is protected by the Fourteenth Amendment to the United States

Constitution and Section 16, Article I of the Ohio Constitution.” State v. Rohrer, 4th Dist. Ross

No. 14CA3471, 2015-Ohio-5333, ¶ 20. (Other citations omitted). In State ex rel. Hattie v.

Goldhardt, 69 Ohio St.3d 123, 630 N.E.2d 696 (1994), the Ohio Supreme Court addressed due

process rights as follows:

        The Fourteenth Amendment forbids a state to ‘deprive any person of life, liberty,

        or property, without due process of law * * *.’ Hence, the Due Process Clause

        applies ‘only if a government action will constitute the impairment of some

        individual’s life, liberty, or property.’ ” 2 Rotunda & Nowak, Treatise on

        Constitutional Law (1992) 580, Section 17.2.

Id. at 125.

        {¶ 21} It is clear that Stidam was approximately 15 or 16 years old when he committed

the offenses of sexual battery, in violation of R.C. 2907.03(A)(1). Because Stidam was indicted

after he turned 21 years old, he was subject to the jurisdiction of the general division of the

common pleas court. R.C. 2152.02(C)(3) exempts from the definition of a child “[a]ny person

who, while under eighteen years of age, commits an act that would be a felony if committed by

an adult and who is not taken into custody or apprehended for that act until after the person

attains twenty-one years of age * * *.” Also, R.C. 2151.23(I), the statute addressing the

jurisdiction of the juvenile court, states:
Adams App. No. 15CA1014                                                                             11


       If a person under eighteen years of age allegedly commits an act that would be a

       felony if committed by an adult and if the person is not taken into custody or

       apprehended for that act until after the person attains twenty-one years of age, the

       juvenile court does not have jurisdiction to hear or determine any portion of the

       case charging the person with committing that act. In those circumstances, * * *

       the case charging the person with committing the act shall be a criminal

       prosecution commenced and heard in the appropriate court having jurisdiction of

       the offense as if the person had been eighteen years of age or older when the

       person committed the act. All proceedings pertaining to the act shall be within the

       jurisdiction of the court having jurisdiction of the offense, and that court has all

       the authority and duties in the case as it has in other criminal cases in that court.

(Emphasis Added.) Accordingly, Stidam pleaded guilty in the general division of the common

pleas court and was subject to an adult sentence.

       {¶ 22} In In re C.P., the Ohio Supreme Court separately analyzed appellant’s due process

and cruel and unusual punishment claims. The Court found that “R.C. 2152.86’s automatic

imposition of an adult punishment- lifetime reporting and notification- stands in contrast to the

R.C. 2152.14 process for invoking the adult portion of the sentence in an SYO disposition.” Id.

at ¶ 79. Accordingly, the Court determined that the automatic imposition of lifetime sex offender

registration requirements interfered with a juvenile judge’s discretion in an SYO disposition,

resulting in a violation of due process. Id. at ¶¶ 83-86. The Court explained and concluded the

following:

       Again, we are dealing with juveniles who remain in the juvenile system through

       the decision of a juvenile judge—a decision made through the balancing of the
Adams App. No. 15CA1014                                                                            12


       factors set forth in R.C. 2152.12(B)—that the juvenile at issue is amenable to the

       rehabilitative purpose of the juvenile system. The protections and rehabilitative

       aims of the juvenile process must remain paramount; we must recognize that

       juvenile offenders are less culpable and more amenable to reform than adult

       offenders.

       The requirement in R.C. 2152.86 of automatic imposition of Tier III classification

       on a juvenile offender who receives an SYO dispositional sentence undercuts the

       rehabilitative purpose of Ohio’s juvenile system and eliminates the important role

       of the juvenile court’s discretion in the disposition of juvenile offenders and thus

       fails to meet the due process requirement of fundamental fairness. In D.H., 120

       Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 59, we held that because of the

       central role of the juvenile judge in a juvenile’s rehabilitative process,

       fundamental fairness did not require the same jury-trial rights for juveniles as we

       required for adults in Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

       In this case, we determine that fundamental fairness is not a one-way street that

       allows only for an easing of due process requirements for juveniles; instead,

       fundamental fairness may require, as it does in this case, additional procedural

       safeguards for juveniles in order to meet of the juvenile system’s goals of

       rehabilitation and reintegration into society.

Id. at ¶¶ 84-85.

       {¶ 23} Here, Stidam was not determined to be a serious youth offender or even

adjudicated within the juvenile system. Thus, the In re C.P. decision is clearly distinguishable

from the present case. Nonetheless, Stidam contends the automatic, non-discretionary nature of
Adams App. No. 15CA1014                                                                              13


his Tier III classification for offenses he committed as a juvenile still violates due process. We

disagree.

       {¶ 24} As the aforementioned citations to In re C.P. demonstrate, the Ohio Supreme

Court repeatedly referenced the protections and rehabilitative purposes of the juvenile system, as

well as the important role of the juvenile judge’s discretion in sentencing. Because Stidam was

indicted as an adult, those aspects of the juvenile system are simply not applicable here. It was

C.P.’s status as an SYO and his disposition in the juvenile system that led the Court to find that

automatic, lifetime registration “undercuts the rehabilitative purpose of Ohio’s juvenile system

and eliminates the important role of the juvenile court’s discretion in the disposition of juvenile

offender.” Id. at ¶ 85. Fundamentally contrasting, Stidam was adjudicated in the general division

of the common pleas court in the adult court. Although Stidam was indicted for crimes he

committed as a juvenile, we find the fact that he was indicted at the age of 22 is crucial; and we

decline to extend the reasoning articulated in In re C.P. to the facts here. Thus, we conclude that

Stidam’s Tier III classification does not violate his right to due process.

       {¶ 25} Furthermore, R.C. 2151.23(I), the statute requiring Stidam to be subject to adult

adjudication, has been upheld as constitutional. The General Assembly enacted R.C. 2151.23(I)

as part of a series of amendments to the juvenile statutes in 1997. State v. Chavis, 10th Dist.

Franklin No. 15AP-557, 2015-Ohio-5549, ¶ 21. “These changes to the statutory scheme

effectively removed anyone over 21 years of age from juvenile-court jurisdiction, regardless of

the date on which the person allegedly committed the offense.” State v. Walls, 96 Ohio St.3d

437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 14. This rule of law in Ohio and the statutes that codify

it has previously been challenged as unconstitutional.
Adams App. No. 15CA1014                                                                            14


       {¶ 26} In Walls, the defendant Walls was indicted in 1998 for aggravated murder. Id. at ¶

6. Walls was 29 years old at the time of the indictment. The murder occurred in 1985, when

Walls was only 15 years old. Id. at ¶¶ 2, 5. “Even though Walls was a minor at the time of the

alleged murder, the versions of R.C. 2151.011(B)(6)(c) and 2151.23(I) then in effect allowed the

state to try Walls as an adult.” Id. at ¶ 6. Walls moved to dismiss the indictment, arguing that the

1985 version of R.C. 2151.011(B)(1) should control his disposition rather than the 1997

amended statutes. “Under the 1985 law, Walls could not be tried as an adult until a juvenile court

had first bound him over for trial to the general division of the court of common pleas.” Walls at

¶ 6, citing former R.C. 2151.011(B)(1), 140 Ohio Laws, Part I, 584. On appeal, “[Walls] argued

that the court of common pleas, general division, lacked subject matter jurisdiction to hear the

case because the amended statutes were unconstitutionally retroactive as they violated his right

to a bindover proceeding in juvenile court.” State v. Adams, 10th Dist. Franklin No. 12AP-83,

2012-Ohio-5088, ¶ 16, citing Walls at ¶ 8.

       {¶ 27} The Ohio Supreme Court upheld the statutory amendments as constitutional. The

Court determined that the statutes did not impair any substantive rights because Walls did not

have a substantive right to a juvenile bindover proceeding under prior law. Walls at ¶ 19. The

Court explained:

       The 1997 changes to R.C. Chapter 2151 did not impair any of Walls’s vested

       rights within the meaning of our retroactivity jurisprudence. Although the 1997

       amendments to the juvenile statutes allowed criminal prosecution without the

       bindover proceeding required under the 1985 law, we cannot characterize this

       change as anything other than remedial. Even under the law in effect in 1985,

       Walls was subject to criminal prosecution in the general division of a court of
Adams App. No. 15CA1014                                                                           15


       common pleas if the juvenile court made certain determinations specified by

       statute. See former R.C. 2151.26(A) and (E), 140 Ohio Laws, Part I, 585–586.

       Thus, under either the 1985 law or the 1997 law, Walls was on notice that the

       offense he allegedly committed could subject him to criminal prosecution as an

       adult in the general division of **838 the court of common pleas. The 1997 law

       merely removed the procedural prerequisite of a juvenile-court proceeding. Even

       though they may have an occasional substantive effect on past conduct, “it is

       generally true that laws that relate to procedures are ordinarily remedial in

       nature.” Cook, 83 Ohio St.3d at 411, 700 N.E.2d 570; see, also, In re Nevius

       (1963), 174 Ohio St. 560, 564, 23 O.O.2d 239, 191 N.E.2d 166.

Walls at ¶ 17.

       {¶ 28} In State v. Warren, 118 Ohio St.3d 200, 2008-Ohio-2011, 887 N.E.2d 1145, the

Ohio Supreme Court addressed whether “due process is violated when the defendant receives a

mandatory term of life imprisonment for forcible rape of a victim under age 13 when the

defendant was 15 years of age at the time of the offense but not prosecuted until he had passed

the age of 21.” Id. at ¶ 1. The defendant specifically challenged R.C. 2152.02(C)(3), which

required that because he was not apprehended until after he had reached 21 years of age, he

cannot be considered “a child” in relation to the offenses in that case. Id. at ¶ 29. The Court also

stated that R.C. 2151.23(I) and R.C. 2152.12(J) were relevant to its analysis because the statutes

“reiterate the clear legislative intent underlying R.C. 2152.02(C)(3) that once an offender reaches

21 years of age, he is to be prosecuted as an adult, regardless of his age when the acts were

committed. Id.
Adams App. No. 15CA1014                                                                          16


       {¶ 29} In the lead opinion garnering three votes, the Court, relying on its decision in

Walls, held that R.C. 2152.02(C)(2), 2151.23(I), and 2152.12(J) did not affect a substantial right

because the defendant was on notice that the offenses he allegedly committed could subject him

to criminal prosecution as an adult in the general division of the court of commons pleas. Warren

at ¶ 46, citing Walls. Accordingly, the Court overruled Warren’s arguments that the challenged

statutes violated his rights to due process and fundamental fairness. Id. at ¶ 58. The Court

concluded:

       Walls is not directly on point with this case because it did not involve a due

       process argument based upon principles of fundamental fairness. However, the

       similarities between the situation in this case and in Walls are substantial, and the

       essential principles that emerge from Walls make it impossible for Warren to

       prevail on his due process argument.

       Most important, as in Walls, the application of the statutes requiring that Warren

       be tried as an adult in common pleas court (in this case, R.C. 2152.02(C)(3),

       2151.23(I), and 2152.12(J)) cannot be viewed as affecting a substantive right

       because under either the 1985 bindover law or the 1997 law that was applied to

       him, Warren was on notice that the offense[s] he allegedly committed could

       subject him to criminal prosecution as an adult in the general division of the court

       of common pleas. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, at

       ¶ 17.

       In addition, Walls stands squarely in the way of any argument that Warren might

       make about the lack of a bindover hearing in his case, because although Warren

       “perhaps remained eligible for retention within the jurisdiction of the juvenile
Adams App. No. 15CA1014                                                                           17


       court under a technical reading of the old statutes, the practical reality is that [he]

       had virtually no chance of being kept in the juvenile system.” Walls, at ¶ 31. As in

       Walls, any bindover hearing under the statute that was in place in 1988 would

       have been simply a procedural step in the process of transferring Warren for

       prosecution as an adult. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d

       829, at ¶ 41.

       Warren does not explicitly argue that he was prejudiced by the absence of a

       bindover hearing or that the juvenile court should have retained jurisdiction over

       his case. Instead, he claims to have been prejudiced by the trial court’s inability to

       consider his age at the time of the offenses in sentencing him for rape. Warren

       argues that he would have received more favorable treatment if he had been

       charged with rape while still a juvenile and that that favorable treatment should

       extend to the rape conviction in this case. Those arguments are significantly

       undercut by Walls, in which this court held that no substantive rights are affected

       in this situation. Id. at ¶ 19.

Warren at ¶¶ 48-51.

       {¶ 30} Other Ohio appellate districts have rejected constitutional challenges to the

statutes at issue in Warren and Wells. See State v. Scharr, 5th Dist. No. 2003CA00129, 2004-

Ohio-1631, ¶¶ 27, 29 (rejecting defendant’s claims that R.C. 2151.23(I) violated due process and

fundamental fairness because “changing the jurisdiction from the juvenile to the general division

of the common pleas court did not involve any substantive right” and finding no equal protection

violation for R.C. 2151.23(I).); see also State v. Fortson, 11th Dist. Portage No. 2011-P-0031,

2012-Ohio-3118 (rejecting defendant’s arguments that R.C. 2151.23(I) violated his fundamental
Adams App. No. 15CA1014                                                                            18


right to be tried in a juvenile court because it would conflict with the holdings in Walls, Schaar,

and Warren.) Adams, 2012-Ohio-5088 at ¶ 20 (rejecting defendant’s claims that R.C.

2152.02(C)(2), R.C. 2151.23(I), and R.C. 2152.12(J) violated principles of due process and equal

protection).

       {¶ 31} Therefore, considering the critical factual distinctions between this case and In re

C.P. and the above authority rejecting due process challenges to R.C. 2151.23(I), we do not find

that Stidam’s Tier III sex offender classification violated his right to due process under either the

United States Constitution or the Ohio Constitution.

   D. Stidam’s Classification as a Tier III Sex Offender Does Not Violate Constitutional

                     Protections Against Cruel And Unusual Punishment.

          1. Cruel and Unusual Punishment Under the United States Constitution.

       {¶ 32} Stidam also argues that his mandatory lifetime Tier III sex offender registration

requirements, for offenses he committed as a juvenile, violate the prohibitions against cruel and

unusual punishments contained in both the United States Constitution and the Ohio Constitution.

The Eighth Amendment to the United States Constitution states, “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” “Central to

the Constitution’s prohibition against cruel and unusual punishment is the ‘precept of justice that

punishment for crime should be graduated and proportioned to [the] offense.’ ” In re C.P., 131

Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, at ¶ 25, quoting Weems v. United States, 217

U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). “As applied to juveniles, the United States

Supreme Court has held that the Eighth Amendment prohibits the imposition of the death penalty

and the imposition of life without the possibility of parole for nonhomicide offenses.” State v.

Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 8, citing Roper v. Simmons, 543 U.S.
Adams App. No. 15CA1014                                                                       19


551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011,

176 L.Ed.2d 825 (2010). More recently, the Eighth Amendment was held to ban mandatory life-

without-parole sentences on juveniles in Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012).

       {¶ 33} Addressing challenges based upon cruel and unusual punishments under the

Eighth Amendment to the United States Constitution, the Ohio Supreme Court has stated:

              The United States Supreme Court has observed that its cases addressing

       proportionality fall into two categories. The first involves “challenges to the

       length of term-of-years sentences given all the circumstances in a particular case.”

       Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

       The second involves categorical restrictions that, until Graham, applied only in

       capital cases. The second approach traditionally involves “cases in which the

       Court implements the proportionality standard by certain categorical restrictions

       on the death penalty.” Id. These restrictions include a prohibition on the death

       penalty for nonhomicide crimes, for defendants who committed the crime before

       the age of 18, and for defendants with low mental functioning. See Kennedy v.

       Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (prohibiting

       death as a punishment for nonhomicide crimes); Roper v. Simmons, 543 U.S. 551,

       125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (prohibiting the death penalty for

       defendants who committed crimes before turning 18); Atkins v. Virginia, 536 U.S.

       304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting the death penalty for

       persons with low intellectual functioning).

Blankenship, 145 Ohio St.3d 211, 2015-Ohio-4624, 48 N.E.3d 516, at ¶ 18.
Adams App. No. 15CA1014                                                                         20


       {¶ 34} In addition to the Ohio Supreme Court’s decision in In re C.P., Stidam also cites

the reasoning in the United States Supreme Court cases of Graham, Miller, and Roper in support

of his argument. In Graham, the Court held that a juvenile offender should not be punished with

a sentence of life without parole. The Court concluded:

                In sum, penological theory is not adequate to justify life without parole for

       juvenile nonhomicide offenders. This determination; the limited culpability of

       juvenile nonhomicide offenders; and the severity of life without parole sentences

       all lead to the conclusion that the sentencing practice under consideration is cruel

       and unusual. This Court now holds that for a juvenile offender who did not

       commit homicide the Eighth Amendment forbids the sentence of life without

       parole. This clear line is necessary to prevent the possibility that life without

       parole sentences will be imposed on juvenile nonhomicide offenders who are not

       sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the

       point where society draws the line for many purposes between childhood and

       adulthood,” those who were below that age when the offense was committed may

       not be sentenced to life without parole for a nonhomicide crime. Roper, 543 U.S.,

       at 574, 125 S.Ct. 1183.

Id. at 74-75.

       {¶ 35} In Miller, the United States Supreme Court held that mandatory life imprisonment

without parole for those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on cruel and unusual punishments. The Court explained:

                To start with the first set of cases: Roper and Graham establish that

       children are constitutionally different from adults for purposes of sentencing.
Adams App. No. 15CA1014                                                                        21


      Because juveniles have diminished culpability and greater prospects for reform,

      we explained, “they are less deserving of the most severe punishments.”

      Graham, 560 U.S. at 68, 130 S.Ct. at 2026, 176 L.Ed.2d 825. Those cases relied

      on three significant gaps between juveniles and adults. First, children have a “

      ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to

      recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569, 125

      S.Ct. 1183, 161 L.Ed.2d 1. Second, children “are more vulnerable * * * to

      negative influences and outside pressures,” including from their family and

      peers; they have limited “contro[l] over their own environment” and lack the

      ability to extricate themselves from horrific, crime-producing settings. Ibid. And

      third, a child’s character is not as “well formed” as an adult’s; his traits are “less

      fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].”

      Id., at 570, 125 S.Ct. 1183, 161 L.Ed.2d 1183.

      ***

              We therefore hold that the Eighth Amendment forbids a sentencing

      scheme that mandates life in prison without possibility of parole for juvenile

      offenders. Cf. Graham, 560 U.S., at ––––, 130 S.Ct., at 2030 (“A State is not

      required to guarantee eventual freedom,” but must provide “some meaningful

      opportunity to obtain release based on demonstrated maturity and

      rehabilitation”). By making youth (and all that accompanies it) irrelevant to

      imposition of that harshest prison sentence, such a scheme poses too great a risk

      of disproportionate punishment. Because that holding is sufficient to decide these

      cases, we do not consider Jackson’s and Miller’s alternative argument that the
Adams App. No. 15CA1014                                                                    22


       Eighth Amendment requires a categorical bar on life without parole for juveniles,

       or at least for those 14 and younger. But given all we have said in Roper,

       Graham, and this decision about children’s diminished culpability and

       heightened capacity for change, we think appropriate occasions for sentencing

       juveniles to this harshest possible penalty will be uncommon. That is especially

       so because of the great difficulty we noted in Roper and Graham of

       distinguishing at this early age between “the juvenile offender whose crime

       reflects unfortunate yet transient immaturity, and the rare juvenile offender

       whose crime reflects irreparable corruption.” Roper, 543 U.S., at 573, 125 S.Ct.

       1183; Graham, 560 U.S., at ––––, 130 S.Ct., at 2026–2027. Although we do not

       foreclose a sentencer’s ability to make that judgment in homicide cases, we

       require it to take into account how children are different, and how those

       differences counsel against irrevocably sentencing them to a lifetime in prison.

       ***

              Graham, Roper, and our individualized sentencing decisions make clear

       that a judge or jury must have the opportunity to consider mitigating

       circumstances before imposing the harshest possible penalty for juveniles. By

       requiring that all children convicted of homicide receive lifetime incarceration

       without possibility of parole, regardless of their age and age-related

       characteristics and the nature of their crimes, the mandatory sentencing schemes

       before us violate this principle of proportionality, and so the Eighth

       Amendment’s ban on cruel and unusual punishment.

Miller at 2464-2465, 2469, and 2475.
Adams App. No. 15CA1014                                                                             23


        {¶ 36} In In re C.P., in addition to concluding that the automatic imposition of lifetime

registration for juvenile SYO offenders violates due process, the Ohio Supreme Court also found

that it violates the prohibitions against cruel and unusual punishments contained in the United

States and Ohio Constitutions. Id., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, at ¶¶

58, 68. The In re C.P. court first determined that the national consensus disfavored publication of

juvenile sex offenders’ personal information. Id. at ¶¶ 30-37. Then, the Court conducted an

independent review of the factors considered by the United States Supreme Court in Graham,

including the culpability of the offenders, the nature of the offenses, the severity of the

punishment and the penological justifications. Id. at ¶¶ 38-58.

        {¶ 37} The Court concluded:

               In sum, the limited culpability of juvenile nonhomicide offenders who

        remain within the jurisdiction of the juvenile court, the severity of lifetime

        registration and notification requirements of PRQJOR status, and the inadequacy

        of penological theory to justify the punishment all lead to the conclusion that the

        lifetime registration and notification requirements in R.C. 2152.86 are cruel and

        unusual. We thus hold that for a juvenile offender who remains under the

        jurisdiction of the juvenile court, the Eighth Amendment forbids the automatic

        imposition of lifetime sex-offender registration and notification requirements.

Id. at ¶ 58.

        {¶ 38} Two Ohio appellate courts have addressed whether automatic Tier III sex offender

classification and registration requirements for juvenile offenders who were tried as adults

violate due process rights and the prohibitions on cruel and unusual punishment. In State v.

Reidenbach, 5th Dist. Coshocton No. 2014CA0019, 2015-Ohio-2915, the 17 year old defendant,
Adams App. No. 15CA1014                                                                             24


Reidenbach, was indicted on twenty counts of rape and twenty counts of gross sexual imposition.

Id. at ¶ 1. Reidenbach was bound over from the juvenile division to the general division of the

common pleas court pursuant to R.C. 2152.10(B) and R.C. 2152.12, at the juvenile division’s

discretion. Id. at ¶ 33. Reidenbach pleaded guilty to three counts of gross sexual imposition. Id.

at ¶ 2. The trial court sentenced Reidenbach to an aggregate term of ten years in prison. Id. The

trial court also classified Reidenbach as a Tier III sex offender. Id. On appeal, Reidenbach

argued that the Tier III sex offender registration requirement under R.C. 2950.01(G)(1) was

unconstitutional as applied to juvenile offenders and constituted cruel and unusual punishment.

Id. at ¶ 15.

        {¶ 39} The Fifth District Court of Appeals declined to extend the reasoning in Graham,

Miller, and In re C.P. to the facts of that case.1 The court stated, “The juvenile court provided

appellant with due process, holding a probable cause hearing and amenability hearings before

making its determination [to bind defendant over to the general division of the common pleas

court.]” Reidenbach at ¶ 33. The Fifth District also distinguished In re C.P. from the facts in

Reidenbach because “* * *the C.P. case applied to juveniles deemed juvenile offender

registrants who remained in the juvenile system.” Reidenbach at ¶ 33.

        {¶ 40} In State v. Martin, 8th Dist. Cuyahoga No. 102783, 2016-Ohio-922, the Eighth

District Court of Appeals also declined to extend the reasoning of In re C.P. to a case where a

juvenile was bound over to the general division of the common pleas court. Id. at ¶¶ 27-29. The

defendant, Martin, was 16 years old when he was indicted on two counts of aggravated robbery,

two counts of kidnapping, and two counts of rape. Id. at ¶ 4. The State filed a mandatory



1
 Because appellant failed to challenge the constitutionality of the statutory scheme at the trial
court level, the Fifth District reviewed the constitutional issue under appellant’s ineffective
assistance argument presented in another assignment of error. Reidenbach at ¶¶ 16-17.
Adams App. No. 15CA1014                                                                             25


bindover motion pursuant to Juv.R. 20 and R.C. 2152.12. Id. at ¶ 5. The juvenile court held a

hearing, found probable cause that Martin committed the offenses, and transferred the case to the

adult court. Id. Martin pleaded guilty to an amended indictment including one count of rape in

violation of R.C. 2907.02(A). Id. at ¶ 7. As a part of the Martin’s sentence, he was classified as a

Tier III sex offender.

       {¶ 41} On appeal, Martin argued that automatic Tier III classification for a juvenile

offender is unconstitutional because (1) it violated his due process rights and (2) it amounted to

cruel and unusual punishment. Id. at ¶¶ 9-10. The Eighth District stated that the “* * *problem

with Martin’s arguments is that he was not in juvenile court.” (Emphasis sic). The court stated,

“In enacting the mandatory bindover statutes, the legislature ‘single[d] out older juvenile’

offenders, ‘who are potentially more street-wise, hardened, dangerous, and violent.’ ” Id. at 18,

quoting State v. Lane, 11th Dist. Geauga No. 2013-G-3144, 2014-Ohio-2010, ¶ 67. The court

observed that Martin was not challenging the bindover and Ohio Courts have found the

mandatory bindover statute to be constitutional. Id. at ¶¶ 19-20.

       {¶ 42} The Eighth District found that the reasoning behind the Ohio Supreme Court’s

decision of In re C.P., i.e, that the automatic, lifetime registration and notifications of R.C.

2152.86 frustrated two of the fundamental elements of juvenile rehabilitation: confidentiality and

the avoidance of stigma, did not apply under the facts of that case. Id. at ¶¶ 26-27, quoting In re

C.P. at ¶ 67. With regards to Martin’s cruel and unusual punishment arguments, the Eighth

District stated: “The flaw in Martin’s argument is that he is trying to equate a death sentence or a

life sentence without the possibility of parole with having to register as a sex offender for life. It

is illogical to do so and, as such, we decline to extend the reasoning in the three United States

Supreme Court cases to the facts present here.” Id. at ¶ 21 (addressing Martin’s reliance on
Adams App. No. 15CA1014                                                                             26


Roper, Graham, and Miller). Accordingly, the court rejected Martin’s argument that his Tier III

sex offender classification violated his right to due process or constituted cruel and unusual

punishment. Id. at ¶ 29.

       {¶ 43} In the case sub judice, we have already noted the distinguishing fact here

compared to the facts of In re C.P., i.e. that Stidam was not adjudicated within the juvenile

system, but was indicted as an adult for offenses he committed as a juvenile. This is a critical

distinction. Although, considering Stidam’s cruel and unusual punishment argument, the facts

here present a close question. Because Stidam committed the offenses as a juvenile, he possessed

a diminished culpability like the offenders of In re C.P., Graham, and Miller. However, in In re

C.P., the Court relied heavily on the defendant’s status within the juvenile system in regards to

analyzing the severity of the punishment and the penological justifications under Graham.

       {¶ 44} Regarding the severity of the punishment, the court in In re C.P. found:

       For juveniles, the length of the punishment is extraordinary, and it is imposed at

       an age at which the character of the offender is not yet fixed. Registration and

       notification necessarily involve stigmatization. For a juvenile offender, the stigma

       of the label of sex offender attaches at the start of his adult life and cannot be

       shaken. With no other offense is the juvenile’s wrongdoing announced to the

       world. Before a juvenile can even begin his adult life, before he has a chance to

       live on his own, the world will know of his offense. He will never have a chance

       to establish a good character in the community. He will be hampered in his

       education, in his relationships, and in his work life. His potential will be

       squelched before it has a chance to show itself. A juvenile—one who remains

       under the authority of the juvenile court and has thus been adjudged
Adams App. No. 15CA1014                                                                            27


        redeemable—who is subject to sex-offender notification will have his entire life

        evaluated through the prism of his juvenile adjudication. It will be a constant

        cloud, a once-every-three-month reminder to himself and the world that he cannot

        escape the mistakes of his youth.

Id. at ¶ 45.

        {¶ 45} Here, although Stidam committed his crimes as a juvenile, he was indicted as a

22-year-old adult. The legislature, pursuant to R.C. 2151.23(I), determined that he should be

subject to punishment as an adult. Tier III registration requires Stidam to register and verify his

address every 90 days for the rest of his life. Stidam plead guilty to a violation of R.C.

2907.03(A)(1), which admits that he engaged in sexual conduct with another as the result of

knowingly coercing his victim to submit by any means that would prevent resistance by a person

of ordinary resolution. The victim in this case was Stidam’s eight to nine year old cousin.

        {¶ 46} In examining the severity of the punishment in In re C.P., the Court noted the

timing of the punishment and the impact on a SYO juvenile offender tried within the juvenile

system. Here, the timing and the impact of the punishment differ because Stidam was indicted

some six to seven years after he committed his crimes. Accordingly, the Tier III registration

requirements have a distinguishing impact on him as a 22-year-old than the requirements did on

a 15-year-old SYO offender tried within the juvenile system.

        {¶ 47} Concerning the penological justifications, the court in In re C.P. examined the

goals of juvenile disposition under R.C. 2152.01 and the considerations set forth in Graham:

retribution, deterrence, incapacitation, and rehabilitation.” The court found that lifetime

registration requirements run contrary to the goals of R.C. 2152.01 and the goals articulated in

Graham. In re C.P. at ¶¶ 47-49. Specifically, the court stated, “We conclude that the social and
Adams App. No. 15CA1014                                                                              28


economic effects of automatic, lifetime registration and notification, coupled with an increased

chance of re-offense, do violence to the rehabilitative goals of the juvenile court process.” Id. at ¶

57.

       {¶ 48} The purposes of juvenile disposition in R.C. 2152.01(A) are: “to provide for the

care, protection, and mental and physical development of children subject to this chapter, protect

the public interest and safety, hold the offender accountable for the offender’s actions, restore the

victim, and rehabilitate the offender.” In comparison, the purposes of adult sentencing in R.C.

2929.11(A) are “to protect the public from future crime by the offender and others and to punish

the offender using the minimum sanctions that the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources.” Stidam

contends that the modern juvenile system is almost as punitive as the adult system. Stidam

argues that the penological goals are the same regardless of when the offender was charged.

       {¶ 49} Still, the critical distinction between this case and the facts of In re C.P. remain

significant. The goals of sentencing in the adult court differ, however minute Stidam contends

that they are, with the goals of the juvenile system. The stated purpose of the tiered sex offender

classification is “to protect the safety and general welfare of the people of this state.” R.C.

2950.02(B). Recently, the Ohio Supreme Court acknowledged, “that sex-offender registration

schemes have been criticized on the ground that they do not actually serve the intended purpose

of community protection.” Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, at

¶ 29. However, the court also stated, “the penological grounds for imposing such requirements

are still accepted in many quarters and are justified in part based upon the perceived high rate of

recidivism and resistance to treatment among sex offenders.” Id. at ¶ 30.
Adams App. No. 15CA1014                                                                            29


       {¶ 50} Although the facts in Martin and Reidenbach are distinguishable from the facts at

issue here, we find the courts’ reasoning and conclusions in those cases persuasive. The uniting

connection between Martin, Reidenbach, and the case sub judice is that statutes, the bindover

procedures in Martin and Reidenbach and R.C. 2151.23(I) here, prevented the defendants from

being subject to juvenile system and thus outside the bounds of the Ohio Supreme Court’s

analysis in In re C.P.

       {¶ 51} In conclusion, we find that Stidam’s Tier III sex offender classification is not

cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

There is a critical distinction between the concerns of sentencing within the juvenile court and

sentencing within the adult court. Therefore, we are not persuaded to extend the ruling of In re

C.P. and find that automatic Tier III sex offender requirements, for an adult indicted for offenses

he committed as a juvenile, constitute cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution.

                         2. Cruel and Unusual Punishment under Ohio Law

       {¶ 52} The Ohio Constitution, Article I, Section 9, contains its own prohibition against

cruel and unusual punishment. It provides unique protection for Ohioans.

               The Ohio Constitution is a document of independent force. In the areas of

       individual rights and civil liberties, the United States Constitution, where

       applicable to the states, provides a floor below which state court decisions may

       not fall. As long as state courts provide at least as much protection as the United

       States Supreme Court has provided in its interpretation of the federal Bill of

       Rights, state courts are unrestricted in according greater civil liberties and

       protections to individuals and groups.
Adams App. No. 15CA1014                                                                          30


Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus.

Thus, the Ohio Constitution, Article I, Section 9, provides protection independent of the

protection provided by the Eighth Amendment.

       {¶ 53} In its own jurisprudence regarding Article I, Section 9, the Ohio Supreme Court

has recognized that cases involving cruel and unusual punishments are rare, “limited to those

involving sanctions which under the circumstances would be considered shocking to any

reasonable person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). Lack of

proportionality is a key factor: “A punishment does not violate the constitutional prohibition

against cruel and unusual punishments, if it be not so greatly disproportionate to the offense as to

shock the sense of justice of the community.” State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46

(1972), paragraph three of the syllabus.

       {¶ 54} The Ohio Supreme Court addressed the appellant’s challenges under the Ohio

Constitution in In re C.P stated:

               For juveniles who remain in the juvenile system, R.C. 2152.86 is striking

       in the disproportionate way it treats PRQJORs. In In re Agler, 19 Ohio St.2d 70,

       72, 249 N.E.2d 808 (1969), this court stated that “the decided emphasis [of

       juvenile courts] should be upon individual, corrective treatment.” We trust judges

       to make the important calls in imposing the adult portion of the SYO sentence. In

       discretionary SYO cases, juvenile judges determine whether an SYO

       denomination is appropriate. But under R.C. 2152.86, the juvenile judge is given

       absolutely no discretion over the portion of the juvenile’s penalty that could

       extend for a lifetime. There is none of the important, individualized work that

       juvenile judges do. Instead, a lifetime punishment is imposed with no chance for
Adams App. No. 15CA1014                                                                        31


        reconsideration of its appropriateness for 25 years. Compared to punishments for

        other juvenile offenders, whose cases are reevaluated when their juvenile

        disposition ends and at regularly scheduled intervals thereafter, this punishment is

        disproportionate.

               Lack of proportionality is also evidenced by the very public nature of the

        penalty. The punishment of lifetime exposure for a wrong committed in childhood

        runs counter to the private nature of our juvenile court system. Confidentiality has

        always been at the heart of the juvenile justice system. That core principle is

        trampled by any requirement of public notification. Timothy E. Wind, The

        Quandary of Megan’s Law: When the Sex Offender is a Child, 37 J.Marshall

        L.Rev. 73, 117 (2003). Publicity is even more of a concern for PRQJORs, whose

        information is disseminated on the Internet.

Id. at ¶¶ 61-62.

        {¶ 55} In holding that R.C. 2152.86 violated the Ohio Constitution, the court concluded:

        S.B. 10 forces registration and notification requirements into a juvenile system

        where rehabilitation is paramount, confidentiality is element, and individualized

        treatment from judges is essential. The public punishments required by R.C.

        2152.86 are automatic, lifelong, and contrary to the rehabilitative goals of the

        juvenile system. We conclude that they “shock the sense of justice of the

        community” and thus violate Ohio’s prohibition against cruel and unusual

        punishments.”

Id. at ¶ 69.
Adams App. No. 15CA1014                                                                          32


       {¶ 56} Stidam asserts a separate argument that his Tier III sex offender registration

requirements violate the Ohio Constitution’s prohibition on cruel and unusual punishment.

Stidam contends that his case is stronger than the appellant in In re C.P. because the appellant in

that case had the opportunity to seek relief from registration after 25 years.

       {¶ 57} In Blankenship, the Ohio Supreme Court ruled that Tier II sex offender

registration requirements for an adult, who also committed his offenses as an adult, did not

violate the Ohio Constitution’s prohibition on cruel and unusual punishment. Id.,145 Ohio St.3d

221, 2015-Ohio-4624, 48 N.E.3d 516, ¶ 38. Analyzing the appellant’s argument under the Ohio

Constitution, the court stated:

               We are also mindful that “reviewing courts should grant substantial

       deference to the broad authority that legislatures possess in determining the types

       and limits of punishments for crimes.” State v. Weitbrecht, 86 Ohio St.3d 368,

       715 N.E.2d 167 (1999). The General Assembly has seen fit to impose registration

       sanctions in cases involving sex offenses to protect the public. Indeed, such

       sanctions now are the norm. People v. Temelkoski, 307 Mich.App. 241, 262, 859

       N.W.2d 743 (2014) (“all 50 states and the federal government have *231 enacted

       some form of sex offender registration and notification provisions”). They cannot

       be said to be shocking to the sense of justice of the community.

               The stated legislative intent of the General Assembly in enacting S.B. 10

       is to protect the public. While some may question whether the registration

       requirements are the best way to further public safety, questions concerning the

       wisdom of legislation are for the legislature. “ ‘[W]hether the court agrees with it

       in that particular or not is of no consequence. * * * If the legislature has the
Adams App. No. 15CA1014                                                                          33


       constitutional power to enact a law, no matter whether the law be wise or

       otherwise it is no concern of the court.’ ” (Ellipsis sic.) Butler v. Jordan, 92 Ohio

       St.3d 354, 376, 750 N.E.2d 554 (2001), quoting State Bd. of Health v. Greenville,

       86 Ohio St. 1, 20, 98 N.E. 1019 (1912). It is undisputed that the General

       Assembly is “ ‘the ultimate arbiter of public policy’ ” and the only branch of

       government charged with fulfilling that role. Arbino v. Johnson & Johnson, 116

       Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel.

       Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98

       Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. Blankenship has not met

       his burden to show that Tier II sex-offender registration requirements are cruel

       and unusual punishment.

Id. at ¶¶ 36-37.

       {¶ 58} Similarly, we hold that the concerns that led the Ohio Supreme Court in In re C.P.

to conclude that the requirements of lifetime registration for SYO juveniles violated the Ohio

Constitution’s prohibition against cruel and unusual punishment are not present here. By

enacting R.C. 2151.23(I), the General Assembly intended for offenders 21 years of age to be

prosecuted as adults and subject to adult sentences, regardless of when their acts were

committed. An adult sentence includes the automatic imposition of lifetime registration

requirements under a Tier III classification. Under the facts at issue here, we are not persuaded to

overrule the will of the legislature and make an exception for certain Tier III sex offenders.

Therefore, we do not find that Stidam’s classification as a Tier III sex offender violates the

prohibition against cruel and unusual punishment contained in Article I, Section 9 of the Ohio

Constitution.
Adams App. No. 15CA1014                                                                            34


                                          IV. Conclusion

       {¶ 59} For the foregoing reasons, we overrule Stidam’s sole assignment of error. We find

that the registration and address-verification requirements for Tier III offenders under R.C.

Chapter 2950, as applied to Stidam, an adult indicted for offenses he committed as a juvenile, do

not violate his constitutional rights to due process or his constitutional protections against cruel

and unusual punishment. Accordingly, the judgment of the trial court is affirmed.

                                                                         JUDGMENT AFFIRMED.
Adams App. No. 15CA1014                                                                               35


                                       JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds that reasonable grounds exist for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Adams County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, J. and *Stautberg, J.: Concur in Judgment and Opinion.

                                                        For the Court

                                                        By:
                                                                  Marie Hoover, Judge


                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.

*Peter J. Stautberg, Judge of the First Appellate District, sitting by assignment of The Supreme
Court of Ohio in the Fourth Appellate District.
