Opinion
No. 14 JE 0035.
12-27-2016
In re M.R., Minor/Appellant.
Brooke Burns, Assistant Public Defender, Columbus, OH, for Minor/Appellant. Stephen Maher, Senior Assistant Attorney General, Columbus, OH, for State of Ohio.
Brooke Burns, Assistant Public Defender, Columbus, OH, for Minor/Appellant.Stephen Maher, Senior Assistant Attorney General, Columbus, OH, for State of Ohio.
GENE DONOFRIO, P.J., MARY DeGENARO, CAROL ANN ROBB, JJ.
OPINION
DeGENARO, J.
{¶ 1} M.R., a minor child, appeals the juvenile court's decision denying his motion to vacate his sex offender classification. He contends that the juvenile court failed to comply with the timing requirements of R.C. 2152.83 rendering his classification order void. As the juvenile court did comply with the statute, M.R.'s argument is meritless, and we need not engage in the void versus voidable debate. Accordingly, the juvenile court's judgment is affirmed.
{¶ 2} On August 24, 2012, a complaint was filed in the Jefferson County Juvenile Court alleging that then 16–year–old M.R. was delinquent for committing the offenses of rape, R.C. 2907.02(A)(1)(c) and kidnapping, R.C. 2905.01(A)(4), each a felony of the first degree if committed by an adult. Following a merit hearing in March of 2013, M.R. was adjudicated delinquent for committing rape; the juvenile court then proceeded to disposition and committed M.R. to the Ohio Department of Youth Services (DYS) for a minimum period of one year, maximum to his 21st birthday. The juvenile court did not classify M.R. at that time, instead ordering juvenile sex offender treatment for him and delaying classification until release, as M.R. expressed a desire during the dispositional phase of the hearing to receive treatment at Paint Creek, an unsecured facility. M.R. entered DYS on April 1, 2013.
{¶ 3} DYS notified the juvenile court that M.R. was to be transferred to Paint Creek. On August 16, 2013, the juvenile court held a hearing to determine whether to approve M.R.'s transfer from DYS, and also held a sex offender classification hearing in furtherance of the transfer. M.R. indicated he no longer wished to be transferred to Paint Creek and also objected to the constitutionality of his classification, which was overruled. On the same date as the hearing, the juvenile court's judgment entry approved his transfer and classified M.R. as a Tier II offender.
M.R. appealed the constitutionality of his designation as a juvenile sex offender. We held his challenge had no merit, In re M.R., 7th Dist. No. 13 JE 30, 2014-Ohio-2623, 2014 WL 2750118. The Ohio Supreme Court accepted his case as a discretionary appeal, and rejected his challenge pursuant to In re D.S., 146 Ohio St.3d 182, 2016-Ohio-1027, 54 N.E.3d 1184, which upheld the constitutionality of the juvenile classification statute. In re M.R., 147 Ohio St.3d 216, 2016-Ohio-5451, 63 N.E.3d 131, ¶ 1.
{¶ 4} On November 7, 2014, M.R. filed a motion to vacate classification which the State opposed. On November 14, 2014, the juvenile court held a "completion of disposition hearing" at which M.R.'s progress was discussed in addition to hearing arguments regarding his motion to vacate. The juvenile court denied the motion and reclassified M.R. as a Tier I sex offender registrant on November 14, 2014. M.R.'s appeal of this judgment had been stayed pending the Ohio Supreme Court's resolution of In re D.S. as well as M.R.'s appeal to the Court, which issued its decision on August 23, 2016.
{¶ 5} In his sole assignment of error, M.R. asserts:
The Jefferson County Juvenile Court erred when it denied M.R.'s motion to vacate his juvenile sex offender classification order as void.
{¶ 6} M.R. was 16 at the time of the offense. Thus, R.C. 2152.83 dictates when the juvenile court was required to classify M.R. "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[.]" R.C. 2152.83(A)(1). The meaning of "at the time of * * * release" as utilized in R.C. 2152.83(A)(1) is not specifically defined in the Ohio Revised Code.
{¶ 7} M.R. argues that because the juvenile court classified him on August 16, 2013, this was error and a sanction unauthorized by law. As such, he contends that his classification was void and must be vacated. The State argues M.R. is attempting an impermissible collateral attack on his sex offender classification, that any alleged error makes the classification voidable, and is only subject to review on direct appeal.
{¶ 8} We need not wade into the quagmire of whether this order was void or voidable, because we hold that there was no error in the first instance. An appellate court should not address a moot assignment of error as to do so would not be in the interest of judicial economy. App.R. 12(A)(1)(c). Moreover, such an opinion would be advisory.
"Not so long ago, res judicata would have barred this action. Now, because of the quagmire created in the void/voidable line of cases ... We can easily avoid the judicial obstacle course arising from the void-sentence doctrine by simply clarifying that mistakes in imposing sentences make the sentence merely voidable—that is, subject to being reversed on direct appeal." State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 15 (Lanzinger, J., concurring in part and dissenting in part).
On November 10, 2016 the Ohio Supreme Court again addressed the void versus voidable dichotomy and "lurches in yet a new direction. Declaring that failure to properly merge allied offenses causes a sentence to be void, or partly void, the court uses language that may be stretched to say that any mistake in sentencing results in a void or at least partly void sentence. On this point, res judicata is nearly dead. It is no news that the appellate courts have noted inconsistencies in this court's application of the void and voidable concepts and in response have called for continuity. See, e.g., State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077 (9th Dist.) ; State v. Walker, 5th Dist. Richland No. 15CA104, 2016-Ohio-1462, 2016 WL 1378353 ; State v. Mitchell, 187 Ohio App.3d 315, 2010-Ohio-1766, 931 N.E.2d 1157 (6th Dist.)." State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 62–63 (Lanzinger, J., dissenting).
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{¶ 9} The Second District considered the timing language from R.C. 2152.83 and determined the juvenile court acted reasonably when it held the classification hearing less than two months after the date the child was released from a secure facility, reasoning that the statutory phrase "at the time of the child's release from the secure facility"
necessarily incorporates a short interval of time (here, two and a half months, and not thirteen) before jurisdiction is lost. Clearly, the legislature did not intend to mandate a classification simultaneous with release, but merely within a reasonable time given docket constraints and appropriate time for evaluations appurtenant to classification.
In re B.W., 2d Dist. No. 1702, 2007-Ohio-2096, 2007 WL 1288529, ¶ 14.
{¶ 10} The Third District was equally persuaded by this rationale, concluding that a classification hearing held seven months after the juvenile's release from a secure facility was reasonable and comported with R.C. 2152.83. In re Smith, 3rd Dist. No. 1–07–58, 2008-Ohio-3234, 2008 WL 2581667, ¶ 14, 18, sub nom. In re D.J.S., 130 Ohio St.3d 257, 2011-Ohio-5342, 957 N.E.2d 291.
{¶ 11} Here, M.R.'s express desire to enter and engage in a treatment facility—Paint Creek—was a factor considered by DYS when it formally requested the juvenile court to allow M.R. to be released to that non-secure facility. Not until the transfer from DYS to Paint Creek was set into motion—specifically, DYS's notification of a pending transfer which caused the juvenile court to set a classification hearing for M.R. as required by R.C. 2152.83 —did M.R. change his mind. At the classification hearing he indicated he no longer wanted to be transferred from DYS, and moreover argued that the juvenile classification statute was unconstitutional. The juvenile court proceeded with classification, reasoning it was required to do so by R.C. 2152.83 as DYS anticipated transferring M.R. to a non-secure facility. M.R. then challenged the constitutionality of the statute in this court and the Ohio Supreme Court, which both courts rejected. While his appeals were pending, M.R. was released by DYS four and a half months after the classification hearing.
{¶ 12} Against this backdrop, M.R. sought to vacate his classification, contending the juvenile court's timing of the hearing was an error rendering his classification void. Recognizing the conundrum before it, the juvenile court denied M.R.'s motion to vacate:
The hearing was held and the defendant was classified as a Tier II juvenile sex offender registrant and was approved by the Court for transfer to Paint Creek if DYS would decide to place him there. The defendant indicated that he no longer wished to be transferred to Paint Creek, but DYS determines the placement, not him. His desire to enter and engage in a treatment facility is factored by DYS considering whether to transfer him. The defendant was not transferred to Paint Creek and approximately 4 ½ months after the classification hearing the defendant was released from DYS secure custody to his home under parole supervision.
The original classification hearing held on 8–16–2013 was in accordance with ORC 2152.83. The statute provides for a hearing upon release from a secure facility which was anticipated at that time in this particular case. The statute's wording should not be considered to require a hearing on the very day that a defendant is released. The classification hearing held on 8–16–2013 sufficed as a classification upon release, and was considered by the Court as such, as the defendant was released shortly after the classification determination was made and while the classification was still under appeal. Holding another classification hearing in such a short time would have been redundant and unnecessary.
* * *
The defendant did not file any motions prior to his discharge from DYS parole regarding his classification status or request the Court to accelerate his "completion of disposition hearing." Instead he has brought up these issues now when he also claims that the Court cannot now rule on such a motion or cure any suggested insufficiency.
The statutes do not define "completion of disposition." The statutes do not set out any time restraints on holding such a hearing. * * * The defendant is only 18 years old. He remains under the Juvenile Court jurisdiction as he was ordered to have no contact with the victim of his offense, and the juvenile
court has statutory jurisdiction to conduct classification hearings and reclassification hearings.
* * *
The purposes of Juvenile Court to provide for the care, protection, and mental and physical development of children to protect the public interest and safety, to hold the offender accountable for the offender's actions, to restore the victim, and to rehabilitate the offender were followed as the overriding purposes of the dispositions in this matter. Sexual offender classification and registration requirements for juveniles are set out in statutes and have not been declared unlawful. Under the unique circumstances of this case any deficiency that may have occurred should be able to be corrected by the Court and the defendant should not be able to frustrate the legislative intent to classify sex offender defendants in this particular case.
{¶ 13} We are persuaded with the rationale of the juvenile court and our sister districts, and hold that the juvenile court complied with the timing requirements of R.C. 2152.83(A)(1). M.R. was released four and one-half months after his classification hearing. His attempted manipulation of the revised code to circumvent classification is troubling. The timing of M.R.'s classification hearing was reasonable in light of the record before us and the considerations articulated by the juvenile court. As there was no error by the juvenile court there is no basis for M.R.'s motion to vacate. Accordingly, the judgment of the juvenile court is affirmed.
DONOFRIO, P.J., and ROBB, J., concur.