[Cite as In re C.M., 2012-Ohio-342.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



IN RE: C.M.



:      JUDGES:
:      Sheila G. Farmer, P.J.
:      John W. Wise, J.
:      Julie A. Edwards, J.
:
:      Case Nos. 11CA00013 & 11CA00036
:
:
:      OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from Licking County
                                                   Court of Common Pleas, Juvenile
                                                   Division, Case No. A2006-0654

JUDGMENT:                                          Reversed and Remanded

DATE OF JUDGMENT ENTRY:                            January 23, 2012

APPEARANCES:

For State of Ohio                                  For C.M.

KENNETH OSWALT                                     AMANDA J. POWELL
Licking County Prosecutor                          Assistant State Public Defender
Licking County Prosecutor’s Office                 250 East Broad Street, Suite 1400
Licking County Admin. Bldg.                        Columbus, Ohio 43215
20 South Second Street
Newark, Ohio 43055
Edwards, J.

       {¶1}   Appellant, C.M., appeals from the January 26, 2007, Judgment Entry of

the Licking County Court of Common Pleas, Juvenile Division, ordering appellant to

register as a juvenile sex offender and the December 23, 2010, Judgment Entry of the

Licking County Court of Common Pleas, Juvenile Division, denying his Motion to Vacate

Juvenile Sex Offender Classification Order. The two cases have been consolidated for

purposes of appeal.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 18, 2006, a complaint was filed in the Licking County Court of

Common Pleas, Juvenile Division, alleging that appellant C.M. was delinquent by virtue

of having committed the offense of rape in violation of R.C. 2907.02(A)(2). While

appellant was 18 years old when the complaint was filed, he was 17 years old at the

time of the alleged rape. On November 20, 2006, the trial court found appellant to be

delinquent for committing rape, a felony of the first degree if committed by an adult. A

disposition hearing was scheduled for January 26, 2007.            As memorialized in a

Judgment Entry filed on January 26, 2007, at the dispositional hearing, appellant was

committed to jail for thirty days and was placed on sex offender probation for a period of

28 months. Pursuant to a separate Judgment Entry filed on January 26, 2007, the trial

court also classified appellant as a juvenile sex offender registrant pursuant to R.C.

2152.82 with a duty to register once a year for a period of (10) ten years.

       {¶3}   Appellant subsequently received notification from the Ohio Attorney

General stating that he had been classified under Senate Bill 10 as a Tier III sex

offender and that he was required to register every 90 days for life. In response,
appellant filed a petition contesting his reclassification on constitutional grounds in the

Hamilton County Juvenile Court. After the trial court overruled his constitutional

challenges and denied his petition, appellant filed an appeal with the First District Court

of Appeals. Pursuant to a Judgment Entry filed on December 23, 2009, in In Re: Carl E.

____ III, Hamilton App. No. C-081233, the First District affirmed the decision of the trial

court, finding that Senate Bill 10 was constitutional as applied to juvenile offenders such

as appellant.

       {¶4}     Appellant then filed an appeal with the Ohio Supreme Court. On March 25,

2010, appellant filed an application to reopen his First District Appeal pursuant to

App.R. 26(B).

       {¶5}     The Ohio Supreme Court, via an Entry filed on April 14, 2010 in In re: Carl

E. McClurg, III, Case No. 2010-0256, accepted appellant’s appeal and ordered that the

case be held for the decision in In re Smith, No. 2008-1624 and State v. Bodyke, No.

2008-2502. Pursuant to a Judgment Entry filed in Case No. 2010-0256 on August 17,

2010, the Ohio Supreme Court reversed the judgment of the First District Court of

Appeals “as to those portions of the judgment that rejected constitutional challenges to

the Adam Walsh Act on separation-of-powers grounds”, and remanded the case to the

trial court for “further proceedings, if any, necessitated by, State v. Bodyke, ______

Ohio St.3d, 2010-Ohio-2424, ______N.E.2d______.”

       {¶6}     The First District Court of Appeals, as memorialized in a Judgment Entry

filed on October 27, 2010 in In Re: Carl E. McClurg, III, Hamilton App. No. C-081233,

granted appellant’s App.R. 26(B) application to reopen his appeal and ordered that the

judgment of the Hamilton County Juvenile Court be reversed. The First District Court of
Appeals, in its Judgment Entry, held that pursuant to Bodyke, appellant’s previous

classification, community-notification and registration orders were reinstated.

       {¶7}   Subsequently, on November 24, 2010, appellant filed a motion in the

Licking County Court of Common Pleas, Juvenile Division, asking that the juvenile sex

offender registration duties imposed in his case on January 26, 2007 be vacated

because the trial court had erred classifying appellant as a juvenile sex offender

registrant pursuant to R.C. 2152.82 rather than R.C. 2152.83(A)(1). As memorialized in

a Judgment Entry filed on December 23, 2010, the trial court denied such motion,

stating that a motion to vacate was not a substitute for a timely appeal and that it

believed that appellant had not been prejudiced by the trial court’s prior orders

pertaining to classification.

       {¶8}   On January 24, 2011, appellant filed an appeal from the trial court’s

December 23, 2010 Judgment Entry. Such appeal was assigned Case No.

2011CA00013. On March 28, 2011, appellant filed an appeal from the trial court’s

January 26, 2007 Judgment Entry. Such appeal was assigned Case No. 2011CA0036.

On April 21, 2011, appellant filed a motion to consolidate the two cases. Pursuant to a

Judgment Entry filed in this Court on May 9, 2011, the two cases were consolidated for

review.

       {¶9}   Appellant now raises the following assignment of error on appeal:

       {¶10} “THE LICKING COUNTY JUVENILE COURT COMMITTED PLAIN

ERROR WHEN IT CLASSIFIED CARL M. AS A TIER I JUVENILE SEXUAL

OFFENDER REGISTRANT PURSUANT TO R.C. 2152.82.”

                                                I
       {¶11} Appellant, in his sole assignment of error, argues that the trial court

committed plain error when it classified appellant as a Tier I juvenile sexual offender

registrant pursuant to R.C. 2152.82. Appellant specifically contends he was never

previously adjudicated delinquent for committing a sexually-oriented offense which is a

necessary requirement for classification under R.C. 2152.82.

       {¶12} The version of R.C. 2152.82(A) that was in effect at the time of appellant’s

classification hearing provided, in relevant part,      as follows: “(A) The court that

adjudicates a child a delinquent child shall issue as part of the dispositional order 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:

       {¶13} “(1) The act for which the child is adjudicated a delinquent child is a

sexually oriented offense that is not a registration-exempt sexually oriented offense or is

a child-victim oriented offense that the child committed on or after January 1, 2002.

       {¶14} “(2) The child was fourteen, fifteen, sixteen, or seventeen years of age at

the time of committing the offense.

       {¶15} “(3) The court has determined that the child previously was convicted of,

pleaded guilty to, or was adjudicated a delinquent child for committing any sexually

oriented offense or child-victim oriented offense, regardless of when the prior offense

was committed and regardless of the child's age at the time of committing the

offense…”

       {¶16} In turn, the version of R.C. 2152.83 in effect at such time provided, in

relevant part, as follows: “(A)(1) The court that adjudicates a child a delinquent child
shall issue as part of the dispositional order or, if the court commits the child for the

delinquent act to the custody of a secure facility, shall issue at the time of the child's

release from the secure facility, an order that classifies the child a juvenile offender

registrant and specifies that the child has a duty to comply with sections 2950.04,

2950.041, 2950.05, and 2950.06 of the Revised Code if all of the following apply:

       {¶17} “(a) The act for which the child is or was adjudicated a delinquent child is a

sexually oriented offense that is not a registration-exempt sexually oriented offense or is

a child-victim oriented offense that the child committed on or after January 1, 2002.

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

committing the offense.

       {¶19} “(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.”

       {¶20} In the case sub judice, the trial court never previously adjudicated

appellant delinquent for committing a sexually oriented offense. Thus, the trial court

erred in classifying appellant under R.C. 2152.82 rather than R.C. 2152.83.

       {¶21} Appellant’s sole assignment of error is, therefore, sustained.

       {¶22} Accordingly, the judgment of the Licking County Court of Common Pleas,

Juvenile Division, is reversed and this matter is remanded to the trial court to correct the

record to reflect the correct code section.
By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

                   ______________________________



                   ______________________________



                   ______________________________

                            JUDGES

JAE/d0822
              IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT


IN RE: C.M.                                :
                                           :
                                           :
                                           :
                                           :
                                           :       JUDGMENT ENTRY
                                           :
                                           :
                                           :
                                           :       CASE NOS. 11CA00013 &
                                                             11CA00036




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

judgment of the Licking County Court of Common Pleas, Juvenile Division, is reversed

and this matter is remanded to the trial court to correct the record. Costs assessed to

appellee.




                                               _________________________________


                                               _________________________________


                                               _________________________________

                                                            JUDGES
