      [Cite as In re M.I., 2017-Ohio-1524.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: M.I.                                   :    APPEAL NO. C-160466
                                                   TRIAL NO. 12-7570X
                                              :

                                              :      O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 26, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula Adams,
Assistant Prosecuting Attorney, for Appellee State of Ohio,

Timothy J. McKenna, for Appellant M.I.
                     OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.
       {¶1}   In 2012, in Gallia County, M.I. was adjudicated delinquent for

committing acts which, had they been committed by an adult, would have

constituted gross sexual imposition. M.I. was 16 years old when he attacked his

guardian ad litem, groping and grabbing her. The case was transferred to Hamilton

County for disposition. The Hamilton County Juvenile Court committed M.I. to the

Department of Youth Services. The parties stipulated to M.I.’s classification as a Tier

I juvenile offender registrant, the lowest classification. At the end-of-disposition

hearing in 2016, M.I. argued that his mandatory classification as a Tier I offender

was unconstitutional.    The magistrate determined that she had no authority to

declassify M.I., and continued his Tier I classification. M.I. objected. The juvenile

court adopted the magistrate’s decision continuing M.I.’s classification as a Tier I

juvenile offender registrant. M.I. has appealed.

       {¶2}   M.I.’s sole assignment of error alleges that the mandatory

classification of 16- and 17-year-old sex offenders under R.C. 2152.83(A) and

2152.84(A)(2)(c) violates the Equal Protection Clauses of the United States and Ohio

Constitutions, because there is no rational basis for treating juvenile sex offenders

differently based upon their ages.       Under the juvenile-sex-offender laws, sex

offenders 13 or younger may not be classified, classification is discretionary for 14-

and 15-year-old sex offenders, and 16- and 17-year-old sex offenders must be

classified. R.C. 2152.83. The juvenile court has the discretion to determine the

appropriate tier in which to place 16- and 17-year-old sex offenders, but the court

must classify them. Id. Once a juvenile sex offender has been classified, the juvenile

court may lower the classification at the end-of-disposition hearing, but the court has

no authority to declassify the juvenile. R.C. 2152.84(A)(2)(c). Nor may the court

increase the classification. Id.; R.C. 2152.84(B)(2).

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       {¶3}   Statutes validly enacted by the General Assembly are presumed to be

constitutional. State v. Cook, 83 Ohio St.3d 404, 409, 700 N.E.2d 570 (1998). As

the party challenging the legislation, M.I. has the burden to prove that it is

unconstitutional. State v. Thompkins, 75 Ohio St.3d 558, 560, 664 N.E.2d 926

(1996). The parties agree that under M.I.’s equal-protection argument, the statutes

are subject to rational-basis review. Therefore, M.I. must prove that the statutory

classifications are not rationally related to any legitimate governmental interest. Id.;

State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13; State

v. Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000).

       {¶4}   M.I. argues that there is no rational basis for treating juvenile sex

offenders differently based on their ages. The Third, Fourth, Fifth, Seventh, Eighth,

and Eleventh Appellate Districts have considered and rejected this argument. See In

re R.G., 11th Dist. Geauga No. 2016-G-0064, 2016-Ohio-8426; In re T.M., 11th Dist.

Geauga No. 2016-G-0060, 2016-Ohio-8425; In re D.C., 8th Dist. Cuyahoga No.

103854, 2016-Ohio-4571; In re D.D., 5th Dist. Stark No. 2015CA0043, 2015-Ohio-

3999; In re A.W., 5th Dist. Knox No. 15CA3, 2015-Ohio-3463; In re M.R., 7th Dist.

Jefferson No. 13 JE 30, 2014-Ohio-2623; In re Forbess, 3d Dist. Auglaize No. 2-09-

20, 2010-Ohio-2826; In re C.P., 4th Dist. Athens No. 09CA41, 2010-Ohio-1484,

rev’d on other grounds, 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729. We

have found no Ohio appellate court case holding that treating juvenile sex offenders

differently based upon their ages violates equal protection.

       {¶5}   As set forth in R.C. 2950.02, the purpose of sex-offender registration is

to protect the public. Those appellate courts finding no equal-protection violation

have reasoned that the legislature’s concerns for recidivism and public safety provide

a rational basis for treating juvenile sex offenders differently based on their ages. Id.

The courts have reasoned that it is a core premise of the juvenile court system that as

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                     OHIO FIRST DISTRICT COURT OF APPEALS



the juvenile ages, he is more responsible and accountable for his actions. A juvenile

who is almost an adult has less time in the juvenile system to be rehabilitated and

may be less responsive to rehabilitation. Therefore, more tracking is needed after the

juvenile ages out of the system. It is not irrational to conclude that younger children

are less culpable and accountable for their actions and less dangerous than older

offenders.    Younger children have more time in the juvenile system to be

rehabilitated and may be more susceptible to rehabilitation than older children.

       {¶6}   We agree with this reasoning and hold that the juvenile-sex-offender-

classification system is rationally related to the legitimate governmental interest of

protecting the public from sex offenders. Therefore, it does not violate M.I.’s right to

equal protection of the law.

       {¶7}   We note that the Ohio Supreme Court has held that under the Due

Process Clause of the Ohio Constitution, a juvenile has a right to “fundamental

fairness” that is violated where mandatory provisions in the juvenile statutes

eliminate the “ ‘essential element of the juvenile process’—the judge’s discretion.”

See In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, ¶ 30 (holding

that imposition upon a juvenile of sex-offender registration and notification

requirements that extend beyond age 18 or 21 does not violate due process because

the juvenile judge decides whether to impose the penalty), citing In re C.P., 131 Ohio

St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 77 (holding that R.C. 2152.86, which

imposed automatic, lifelong sex-offender registration and notification requirements,

violated a juvenile’s due-process rights because the requirements were imposed

“without the participation of a juvenile judge” and, therefore, failed “to meet the due

process requirement of fundamental fairness”); State v. Aalim, ___ Ohio St.3d ___,

2016-Ohio-8278, ___ N.E.3d ___ (holding that mandatory transfer of a juvenile to

adult court without providing the protection of a discretionary determination by the

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                     OHIO FIRST DISTRICT COURT OF APPEALS



juvenile judge violates the juvenile’s right to due process, and that discretionary

transfer of a juvenile over the age of 14 to adult court after an amenability hearing

does not). But we make no determination as to whether the mandatory provisions in

the juvenile-sex-offender-classification system violate M.I.’s right to due process,

because M.I. has attacked his classification only on the basis of equal protection.

       {¶8}    M.I.’s assignment of error is overruled. The judgment of the trial court

is affirmed.

                                                                   Judgment affirmed.

MOCK, P.J., and ZAYAS, J., concur.



Please note:
       The court has recorded its own entry this date.




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