ORIGINAI- CLERK OF COURT SUPREME COURT OF OHIO COUNSEL FOR A.C. IN THE SUPREME COURT OF OHIO. IN RE: A.C., a delinquent child. Case No.

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1 ORIGINAI- IN RE: A.C., a delinquent child. IN THE SUPREME COURT OF OHIO Case No On Appeal from the Hamilton County Court of Appeals First Appellate District C.A. Case No. C MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT A.C. JOSEPH T. DETERS # Hamilton County Prosecutor PAULA ADAMS # Assistant Hamilton County Prosecutor (COUNSEL OF RECORD) Hamilton County Prosecutor's Office 230 East 9`" Street, Suite 4000 Cincinnati, Ohio Phone: (513) Fax: (513) COUNSEL FOR STATE OF OHIO OFFICE OF THE OHIO PUBLIC DEFENDER ELIZABETH R. MILLER # Assistant State Public Defender (COUNSEL OF RECORD) 250 East Broad Street, Suite 1400 Columbus, Ohio (614) (614) (Fax) elizabeth.miller@opd.ohio.gov COUNSEL FOR A.C. CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS PaEe No. EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF THE CASE AND FACTS...2 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW...5 PROPOSITION OF LAW I: The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the Ex Post Facto Clauses of the United States Constitution and the Retroactivity Clause of the Ohio Constitution. Article I, Section 10 of the United States Constitution; Article II, Section 28 of the Ohio Constitution; Fourteenth Amendment to the United States Constitution; Article I, Section 16 of the Ohio Constitution...5 PROPOSITION OF LAW II: A child is denied his fundamental right to due process when a juvenile court conducts his juvenile sex offender classification hearing outside of his presence when the child has not voluntarily waived his right to be present at the hearing. Fourteenth Amendment to the United States Constitution; Article I, Section 16 of the Ohio Constitution...5 CONCLUSION...11 CERTIFICATE OF SERVICE...12 APPENDIX: Judgment Entry, Hamilton County Court of Appeals, Case No. C A-1

3 EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION First, this Court should accept jurisdiction in this case and hold it for the decisions in In re Smith, Case No , discretionary appeal granted, 120 Ohio St.3d 1416, 2008-Ohio- 6166; In re G.E.S., Case No , discretionary appeal granted, held for the decision in In re Smith, 2009-Ohio-361 (Ohio Feb. 4, 2009); and In re Adrian R., Case No , discretionary appeal granted on Proposition of Law I; Propositions of Law II and III held for the decision in In Re Smith, 121 Ohio St.3d 1472; 2009-Ohio-2045 (May 6, 2009). Like Smith, G.E.S., and Adrian R., this case presents this Court with an opportunity to consider the constitutionality of Senate Bill 10, Ohio's Adam Wash Act, as it is applied to juvenile offenders whose offenses pre-date the implementation of Senate Bill 10. Accordingly, A.C. asks this Court to accept jurisdiction of his appeal, and hold the first proposition of law for the decisions in Smith, G.E.S., and Adrian R. Further, this Court should accept jurisdiction of this case in order to protect the procedural due process rights of children at their juvenile sex offender classification hearings. This case illustrates that a child's presence at his sex offender classification hearing is instramental to ensuring that his rights are protected because A.C. never received notice of the hearing, and was not present when the court classified him as a Tier II offender registrant, with a duty to register every 180 days for twenty years. Unlike adult classification proceedings, a juvenile court must provide a child with notice and an opportunity to be heard. This is because R.C (A) explicitly requires the juvenile court to conduct a hearing prior to classifying a delinquent child pursuant to R.C or R.C "to determine whether to classify the child [a tier I, tier II, or a tier III offender]." See, e.g., In re: C.A., 2"a Dist. No , 2009-Ohio-3303, 61. "This provision I

4 would be superfluous if the juvenile court's classification determination were merely a ministerial act based solely on the offense that the delinquent child had committed." Id. Accordingly, this Court should accept jurisdiction in this matter and hold it for Smith, G.E.S., and Adrian R. After Smith, G.E.S., and Adrian R. are decided, this Court should order briefing in C.A.'s second proposition of law. STATEMENT OF THE CASE AND FACTS In 2005, A.C., then aged 16, was adjudicated delinquent of gross sexual imposition, a third-degree felony if committed by an adult for an offense. For disposition, the juvenile court suspended A.C.'s commitment to the Department of Youth Services ("DYS"), placed him on probation, and ordered him to complete a residential treatment program at Hillcrest Training School ("Hillcrest"). The court also scheduled a juvenile sex offender registration hearing. Before the hearing took place, A.C. fled to Florida and a warrant was issued for his arrest. While in Florida, A.C. was involved in an incident which led to him being committed to a Florida residential facility for two years. A.C. successfully completed the residential program and was placed on probation. He subsequently graduated from high school, gained employment, and was enrolled in college. In June 2008, A.C. was stopped for speeding and learned that he had an outstanding warrant in Ohio. Accordingly, he was transported back to Ohio and held pending the hearing on the warrant. Soon thereafter, the court imposed A.C.'s previously-suspended commitment to DYS, and ordered him to register as a Tier II juvenile sex offender. A.C. appealed to the First District Court of Appeals which vacated A.C.'s Tier II classification and remanded the matter to the juvenile court for it to conduct a proper sex offender classification hearing. In re A[.]C., 2009-Ohio-2567, 151 Dist. No. C , 1-2. Specifically, the First District found that the trial 2

5 court erred because it failed to exercise its discretion when it classified A.C. as a Tier II registrant. Id. at l 1. In November 2009, the juvenile court held the juvenile sex offender classification following the remand hearing. The prosecutor and defense counsel were present, but A.C. was not, as he was being held at Dearborn Indiana Correctional Facility. Although defense counsel received notice of the hearing, he made no attempt to locate or consult with A.C. Defense counsel did not prepare for the hearing and could not recall the facts of the underlying case, which occurred approximately four years earlier. Counsel also failed to present the court with any testimony, witnesses, or evaluations for it to consider in determining A.C.'s tier classification. Counsel did, however, object to the hearing going forward since A.C. was not present. After the court again classified A.C. a Tier II offender registrant, counsel filed objections to the magistrate's decision which were subsequently overruled. The juvenile court did not notify A.C. that it was holding a juvenile sex offender classification hearing and did not order that he be present even though the Magistrate knew that he was being held in Dearborn Indiana Correctional Facility on an unrelated non-sex offense. The court made no attempt to procure A.C.'s presence by warrant or through extradition procedures, pursuant to R.C Instead, A.C. leamed that the court classified him a Tier II registrant with a duty to register every 180 days for twenty years, two days after the hearing took place. A.C. appealed his classification to the First District Court of Appeals, arguing that the juvenile court violated his fundamental right to due process when it held a sex offender classification hearing and labeled him a Tier II offender registrant without providing him a meaningful opportunity to be heard. See, In re A[.]C., 15` Dist. No. C A.C. also argued 3

6 that the juvenile court erred in finding defense counsel effective when counsel never communicated with him, failed to notify him of the classification hearing, failed to prepare for the hearing, and failed to present any defense on A.C.'s behalf. Further, A.C. argued that the court abused its discretion when it classified him outside of his presence and failed to consider the suggested factors in R.C (D). Finally, A.C. argued that the retroactive application of Senate Bill 10 to him, violated the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of Section 28, Article II of the Ohio Constitution. The First District overruled each of A.C.'s assignments of error, finding that his due process rights were not violated; counsel was not ineffective; the juvenile court did not abuse its discretion for failing to consider the factors in R.C (D) before classifying him outside of his presence; and Senate Bill 10 is not punitive and therefore, does not violate the constitutional ban on ex post facto or retroactivity laws. The First District announced its decision on January 14, This timely appeal follows. 4

7 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW PROPOSITION OF LAW I The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the Ex Post Facto Clauses of the United States Constitution and the Retroactivity Clause of the Ohio Constitution. Article I, Section 10 of the United States Constitution; Article II, Section 28 of the Ohio Constitution; Fourteenth Amendment to the United States Constitution; Article I, Section 16 of the Ohio Constitution. C.A.'s right to be protected from ex post facto and retroactive laws was violated because Senate Bill 10 is significantly different from the law that was in effect at the time of C.A.'s offense and admission. This Court has not yet determined the constitutionality of Ohio's version of the federal Adam Walsh Act, but has accepted jurisdiction of in In re Smith, Case No , discretionary appeal granted, 120 Ohio St.3d 1416, 2008-Ohio-6166; In re G.E.S., Case No , discretionary appeal granted, held for the decision in In re Smith, 2009-Ohio-361 (Ohio Feb. 4, 2009); and In re Adrian R., Case No , discretionary appeal granted on Proposition of Law I; Propositions of Law II and III held for the decision in In re Smith, 121 Ohio St.3d 1472; 2009-Ohio-2045 (May 6, 2009), which will determine whether Senate Bill 10 is constitutional as applied retroactively to juveniles. This case raises the same issues relating to the retroactive application of Senate Bill 10 to juveniles as Smith, G.E.S., and Adrian R. Therefore, A.C. asks this Court to accept jurisdiction over this case and hold it for the decisions in Smith, G.E.S., and Adrian R. PROPOSITION OF LAW II A child is denied his fundamental right to due process when a juvenile court conducts his juvenile sex offender classification hearing outside of his presence when the child has not voluntarily waived his right to be present at the hearing. Fourteenth Amendment to the United States Constitution; Article I, Section 16 of the Ohio Constitution. 5

8 The guarantees of the Due Process Clause apply to juveniles and adults alike. Kent v. United States (1966), 383 U.S. 541, 86 S. Ct. 1045; In re Gault (1967), 387 U.S. 1, 87 S. Ct. 1428; In re Winship (1970), 397 U.S. 358, 90 S. Ct In Gault, the Supreme Court of the United States explicitly extended federal constitutional protections to children in juvenile delinquency proceedings. In re Gault, at The Court determined that a child's interest in delinquency proceedings is not adequately protected without the adherence to due process principles. Id. at This Court has held that the right to procedural due process is required by the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution. State ex rel. Plain Dealer Publishing Co. v. Floyd, 111 Ohio St.3d 56, 2006-Ohio-4437, 45. "[A]t its core, procedural due process under both the Ohio and United States Constitutions requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right. [* * *] Further, the opportunity to be heard must occur at a meaningful time and in a meaningful manner." Id., citing Boddie v. Connecticut (1971), 401 U.S. 371, 377, 91 S. Ct. 780; State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio- 4777, 8. The Supreme Court has noted, "It is significant that most of the provisions of the Bill of Rights are procedural, for it is procedure that marks much of the difference between rule by law and rule by fiat." Wisconsin v. Constantineau (1971), 400 U.S. 433, 436, 91 S. Ct "The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Id., citing Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168, 71 S. Ct. 24 (Frankfurter, J., concurring). "Where a person's good name, reputation, honor or integrity is at stake because of 6

9 what the government is doing to him, notice and an opportunity to be heard are essential." Constantineau, at 437. A child's fundamental right to be heard is rendered meaningless when he has not been provided with notice that a sex offender registration hearing is taking place and is not extradited to the hearing before he is classified and obligated to register as a sex offender for ten, twenty years, or the rest of his life. The First District found that A.C. was not denied his constitutional right to due process because an attorney received notice of and appeared at the hearing on his behal In re A[.]C., IS` Dist. No. C , 6. The First District found that notice requirements were satisfied because Juv.R. 20(B) provides that "[w]henever under these rules or by an order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service is ordered by the court upon the party. Service upon the attornney or upon the party shall be made in the manner provided in Civ.R. 5(B). [* * *] Civ. R. 5(B) provides that, if a party is represented by an attorney of record in the proceedings, service shall generally be made upon the attorney." Id. But here, trial counsel did not attempt to contact A.C. and his ineffective advocacy at the hearing eviscerated A.C.'s right to be heard. Even though trial counsel received notice of the hearing months before the hearing took place, counsel openly admitted that he made no attempt to contact or locate his client. hi addition to admitting that he did not know where A.C. was and that he did not attempt to contact him, counsel did not prepare for the hearing, or advocate for a lower tier classification. When the court asked if counsel had any response to the State's arguments regarding the appropriate tier level, counsel openly denigrated his client and agreed with the prosecutor that his client was a criminal. 7

10 Further, defense counsel admitted that he was not sure that he even recalled the case, but knew that he represented A.C. four years earlier and that the incident probably was a consensual situation, even though he thought the alleged victim was not legally able to provide consent. Equally egregious, counsel admitted that, despite the court's order that all evaluations be completed and available for review before the hearing, he did not attempt to have his client evaluated. At the time of the hearing, A.C. was in the custody of Dearborn Indiana Correctional Facility. He did not receive notice of the hearing, either orally or in writing, until two days after the hearing occurred and the court had classified him a Tier II juvenile offender registrant. In fact, the record reflects that neither the State, nor the court, attempted to procure his presence through extradition procedures, even though they knew where he was being held. R.C ; R.C Despite this fact, the First District found that the trial court did not violate A.C.'s right to due process because his "absence resulted from his own actions, which had caused his incarceration for crimes in Indiana [and that t]he law will not allow A.C. to take advantage of his own wrong to avoid classification as a sexual offender." A.C., at 10. But, A.C. was not trying to avoid classification as a sexual offender and did not voluntarily fail to appear at the hearing. This is not a case where A.C. was purposefully evading review or an order of the court. A.C. had no notice of the hearing and no legal mechanism through which he could appear at the hearing. Conversely, although R.C and R.C give the State and the trial court the ability to secure A.C.'s presence through extradition, neither attempted to exercise their authority to do so. 8

11 A juvenile court must provide a child with an opportunity to be heard because unlike the classification procedures for adult sex offenders, R.C (A) explicitly requires the juvenile court to conduct a hearing prior to classifying a delinquent child pursuant to R.C or R.C "to determine whether to classify the child [a tier I, tier II, or a tier III offender]." In re: C.A., 2 d Dist. No , 2009-Ohio-3303, 61. "This provision would be superfluous if the juvenile court's classification determination were merely a ministerial act based solely on the offense that the delinquent child had committed." Id. As the First District noted in Af.JC., "If the tier classification was automatic for juveniles [as it is for adults], it would [be] pointless to hold a hearing to detennine the classification [* **]. In re A[.]C., 2009-Ohio- 2567, 1s` Dist. No. C , 14. The Attorney General has suggested that juvenile courts should utilize the factors outlined in R.C (D) when making tier determinations. Attorney General's Guide to Ohio's Sex Offender Registration and Notification Laws (SORN, June (2009), pp Specifically, R.C (D) provides that courts should consider all relevant factors including, but not limited to: (1) the nature of the offense; (2) genuine remorse; (3) public interest and safety; (4) factors outlined in R.C (K), which include: offender's age, prior delinquency record, age of victim, whether offense involve multiply victims, whether used drugs or alcohol to impair victim, if prior offense, whether completed disposition, including treatment, mental illness or mental disability of offender, nature of offender's sexual conduct, contact (pattern of abuse), committed, displayed, threatened cruelty, any additional behavior or characteristics deemed relevant; (5) factors outlined in R.C (B), which include: physical or mental injury suffered by victim due to age of victim, serious physical, psychological, or economic hann to victim, whether the offender held public office, offender's 9

12 occupation obliged offender to prevent offense, offender's profession reputation used to facilitate offense, whether the offender's relationship with the victim facilitated offense, whether the offender committed the offense for hire! organized criminal activity, whether the offender was motivated by prejudice of race, ethnic, gender; The court should also consider the factors outlined R.C (C), which include: whether the victim induced the offense, whether the offender acted under strong provocation, whether the offender did not cause or expect physical harm or property, whether there are any substantial grounds to mitigate offender's conduct; (6) the results of any treatment provided to the child and any follow-up assessments of the child. Here, because the trial court did not attempt to procure A.C.'s presence through extradition, he was denied a meaningful opportunity to be heard regarding these factors. This was especially important because defense counsel was not prepared and did not argue any mitigating evidence on A.C.'s behalf. Although the State provided the court with its rendition of what occurred four years earlier, defense counsel could not recall the facts of the case and A.C. was not there to provide the court with what occurred or his rehabilitative successes. Accordingly, the court could not fully address the nature of the offense, could not ascertain A.C.'s level of remorse, and could not determine if the public's safety required the court to order A.C. to register every 180 days for twenty years rather than once a year for 10 years. A juvenile court only complies with the fundamental principles of due process when a child receives notice of the hearing prior to being classified and is provided the opportunity to testify, present evidence of his rehabilitation and treatment, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnesses regarding the determination as to whether he should be classified as a Tier I, Tier II or Tier III offender. A.C.'s classification hearing was conducted with total disregard for his fundamental right to due process. He was not afforded any of the procedural protections identified to be essential in safeguarding the right to 10

13 procedural due process, except that trial counsel appeared on his behalf at the hearing. But even that right was rendered meaningless because trial counsel failed to communicate with A.C., familiarize himself with the underlying offense, or research A.C.'s rehabilitative progress; and failed to provide the court with any mitigating infonnation that was necessary to A.C.'s determination as a juvenile offender registrant. Because the trial court's procedure did not comply with the due process requirements as contemplated by the United States or Ohio Constitution, A.C. respectfully requests that this Court accept jurisdiction and find that a juvenile court may not conduct a hearing pursuant to R.C (A), outside the presence of a child, who has not voluntarily waived his right to be present at the hearing. Alternatively, A.C. requests that this Court vacate his classification as it was imposed in violation of the United States and Ohio Constitutions. CONCLUSION This case raises the same issues relating to the retroactive application of Senate Bill 10 to juveniles as Smith, G.E.S., and Adrian R.; therefore, A.C. asks this Court to accept jurisdiction over this case and hold it for the decisions in Smith, G.E.S., and Adrian R. Further, for the reasons argued above, A.C. respectfully requests this Court accept jurisdiction of his case and order briefing on his second proposition of law in order to ensure that other children are not denied their fundamental right to due process and are provided with a meaningful opportunity to be heard at their juvenile sex offender classification hearings. 11

14 Respectfully submitted, Office-of the Ohio Public Defender EL R. M)LLER # Assti``/ sf t'ant tate Public Defender Co sel f Record 250 East Broad Street, Suite 1400 Columbus, Ohio (614) (614) (Fax) elizabeth.miller@opd.ohio.gov COUNSEL FOR A.C. CERTIFICATE OF SERVICE The undersigned counsel certifies that a copy of the foregoing Memorandum in Support of Jurisdiction of Appellant A.C., was served by ordinary U.S. Mail, postageprepaid, this 28'h day of February, 2011, to Paula Adams, Hamilton County Assistant Prosecutor, 230 East 9"' Street, Cincinnati, Ohio COUNSEL FOR A.C. H R. MILLER # te Public Defender Record) 12

15 IN THE SUPREME COURT OF OHIO IN RE: A.C., a delinquent child.. Case No. On Appeal from the Hamilton County Court of Appeals First Appellate District C.A. Case No. C APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT A.C.

16 f^b ;01NN1 CoUYI of NppeaI S No, 14JJ r. 1 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT 6IP O&'ICi RAMTLxox COUNTY, ohlo IN RE: ANIZNON C. APPEAL NO. C-iooi36 TRIAL NO, o x JUDGDABNT ElJTRY. We consider this appeal on the accelerated calendar, and thisjudgment entry is not an opinion of the court., In 2005, appellant Antwon C. was adjudicated delinquent for committing an act tbat, if committed by an adult, would have constituted gross sexual imposition. The trial court suspended Antwon's conunitment to the Department of Yonth Services ("DYS"), placed him on probation, and ordered him to complete the residential treatment program at Hillcrest Training School ("I-filkrast") in Cincinnati. The court continued the case for a juvenile-offender-regi.strant classification hearing. Before the hearing could take place, Antwon fled to Florida and a warrant was issued for bis arrest. Sbortiy after he arrived In Florida, Antwon was involved in an incident for which he was committed to a residenrial facility for two years. After finishing the program, Antwon was placed on "conditional release" for two years in Florida. He finished high school, obtained employment, and enrolled in college. ^ See S.Ct.RRep.Op. 3(A), App.A 11.1(E), and Loc.R 12. 'ffimi'iii

17 heb. 1h :0 1AN Court ot Appeals OHIO FIRST DISTRICT CO17AT OF AI'PEALS In June 2oo8, Antwon was stopped in Georgia for speeding. The outstanding warrant was discovered and Antwon was returned to Ohio. After a July 2008 hearing, tiie juvenile court designated Antwon as a Mer II sex offender. An August 2oo8 hearing resulted in Antwon's commitment to DYS. Antwon appealed his adjudication and his sex offender classification in the case numbered C-o While his appeal was pend3ng, Antwon was released from DYS on March u, On June 5, 2009, we affirmed Antwon's adjudication, but we reversed the trial court's judgment elassifying Antwon as a 15er II sex offender because the trial court had erroneously believed that the Tier II classification was mandatory, and because the trial court did not wait until Antwon was released from DYS to hold the classification hearing, as requiredby R.C (A)(t). After Antwon was released from DYS, he was incarceratcd in Indiana on bank robbery charges. He also had pending ten felony counts in Hamilton County. Antwon was represented in the Hamilton County Juvenile Court proceedings by the Ohio Public Defender until August 26, 2oo9, when the trial court granted the Ohio -Public Defendezs motion to withdraw and appointed new counsel. The record indicates that the Ohio Public Defender was aware that Antwon was being held in Indiana. The juvenile court magistrate notified.4ntwon's new counsel that a sexua2 offender classification hearing wauld take place on September 29, 2oo9. ' AnhNon's counsel appeared on September 29, 2oog. The magistrate continued the hearing, but noted that it had to take place before Antwon turned 21 on November 17, 2oog. The heariag was held on November 4, Autwon s counsel had received notice of the hearing date. The magistrate indicated on the record that Antwon was not present because Indiana had refused to allow Antwon to be transpo^^^ Naring. Antwon's counsel objected to the hearing 2

18 Feb :(12AN Court of,4-0oeals OHIO FIRST DISTRICT COURT OF APPEALS going forward in Antwon's absence. Following the hearing, the magistrate classified Antwon as a Tier II offender. The trial court overruled Antivon's objections to the magistrate's decision. Antwon has now appealed, raising four assignments of ezror for our review. The first assignment of error alleges that the trial court violated Antwon's due-process rights by holding a sexual-offender classification hearing and designating him as a'15er II sex offender in his absence. Antwon first argues that his right to due process was violated because he did p not personally receive notice of the hearing. Juv.R. 20(B) provides that "[w]henever under these rules or by an order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service is ordered by the court upon the party. Service upon the attorney or upon the party shall be made in the manner provided in Civ.R. 5(B)." Sex-offender classification proceedings are civil in nature.2 "Civ.R. 5(B) provides that, if a party is represented by an attorney of record in the proceedings, service shall generally be made on the attomey."3 Pursuant to Civ.R. 5(B), absent an express order by the court indicating otherwise, if a party is represented by an attorney of record, service, when required, should be made upon that attorney. 4 Antwon's attorney received notice of and appeared at the hearing. The trial court noted ihat the state of Indiana had refused to allow Antwon to be transported to Ohio for the hearing. Antwon's attorney represented him at the hearing, objected i See Seweil v. State, i8t Ohio App.3d a8o, 2oo9-0hio-872, go8 N.E.ed 995; Stare v. Gowdy, 88 Ohio St.3d 387, 2000-Ohio-355, 727 N.E.2d 579; State v. Cook (t998), 83 Ohio St.3d 404,700 N.E.2d See Euans v. Evans, yyh Dist. No. 2007CA00034, 2oo8-0hio-264o, at 121, citing Bierce v. Howeti, 5th Dlst No. 06 CAF o5 0o 2,200 o-3050, at f2o. a See Roberts u. Skag 8-Ohlo-t954, 89i N.E.2d 827, at fil T T. Ai

19 Feh, Lh. LUI I I0 :UG4NI I,OuY[ oi Ap0ea15 N), f43j f, 4 OHTO FIRST DISTRICT COURT OF APPEALS to the hearing goirlg forward in Antwon s absence, and argued against the Tier II classification. Aniwon also argues that the trial court erred in classifying him as a Tler II sex offender in his absence, We stated in State u. Phitlipss that "the overriding principle to be applied is that neither in criminal nor in civil cases wall the law allow a person to take advantage of his own wrong." Antwon's absence resulted from his own actions, which had caused his incarceration for crimes In Indiana. The law will not allow Antwon to take advantage of his own wrong to avoid classification as a sexual offender. The first assignment of error is overruled. Antwon's second assignment of error aueges that he was denied the effective assistance of counsel. This court has not yet decided whether juvenile sex offenders are entitled to appointed counsel in Senate Bill io tier-classification proceedings, and that issue has not been raised by the parties. Because the public defender accepted representation of Antwon, we apply the test for ineffective assistance of counsel set forth in Strickland v. Washington6 and State v. Bradley.7 To prevail on a claim of ineffective assistance of counsel, Antwon must show that his trial counsel's performance was deficient and that the deficient performance was so prejudicial that he was denied a reliable and fundamentally fair proceeding.s To show that he has been prejudiced, Antwon must "prove that there exists a reasonable probability that, were it not for counsel's errors, the resulf' of the hearing "would have been different "9 Following a review of the record, we hold that Antwon has not shown that his counsel violated an 5 (1972),34 Ohio App.2d N.E.2d (1g84), 466 U.S. 668,104 S.Ct T (1989),42 0hio St.3d 136 ^588^AhE^2d,^ g See &n cktand u. Washin 9 See Stare u. Bradley, sup. Brad[ey, supra, at fri. 7.

20 : )1HIV Cou t ot Noo?sis V7. /qj7 Y. D OHIO FIRST DISTRICT COURT OF APPEALS essential duty that resulted in prejudice to him. The second assignment of error is overruled. The third assignment of error alleges that the trial court erred in classifying Antwon a Tier II offender without ordering that Antwon be present for the hearing and without considering the factors set forth in R.C (D). Antwon first argues that the trial court erred in classifyi.ng him as a Tier II offender in his absence. As we noted under Antwon's first assignment of error, Antwon was absent from the classification hearing as a result of his own actions. The law will not allowantwon to take advantage of his own wroog to avoid classification as a sex offender. Antwon also argues under his third assignment of error that the trial court erred in designating him as a 71er II offender without considering the factors set forth in R.C (D). Because Antswn was 16 years old when he committed the offense, the trial court was required to classify him as a juvenile offender registrant under R.C (A)(i) and (2). The trial court is not required to consider the R.C. 2t52 83(D) factors in a classification hearing held pursuant to R.C (A) and 2z52.83i. The third assignment of error is overruled. Finally, Antwon argues that the trial court abused its discretion in classifying him as a Tier 11 sex offender. Antwon was 16 years old at the time of iris offense, and his victim, who was the biological daughter of his foster mother, was 12. Antwon engaged in sexual intercourse with the victim on four occasions over a two-week period. On one occasion, he gave the victim drugs before engaging in sexual intercourse with her. Antwon absconded from his original placement and fled to Florida, where he was involved In an incident that resulted in his commitment to a residential facili ry on was retnraed to Hamilton County, where A g

21 heh. 1h L01I II):U[ANI t,durl ai HOG:i. s r. OITTO F'IItST DIS'YRICT COURT OF APPEALS he was committed to and ultimately released from DYS. After his release from DYS, Antwon was arrested in Indiana for bank robbery. He also has ten felony charges pending in Hamilton County. Following a review of the record, we hold that the trial eourt's decision classifying Antcvon as a Tier TI sex offender was not unreasonable, arbitrary, or unconscionable.jo The third assignment of error is overtuled. Antwon's fourth assignment of error is overruled. We held in Seruell u. State:' that the tier-classification and registration provisions of Senate Bill io are remedial and not punitive, and that they do not have the effeet of converting a remedial statute into a punitive one. Because Senate Bi1l to's classification and registration provisions are civil and remedial, not criminal, they do not violate the constitutional ban on ex post factn lacvs. Further; we held in Sewell that the retroactive application of Senate BiA to's tier-classification and registration requirements does not violate the prohibition on retroactive laws contained in Section 28, Article II of the Ohio Const9tution 12 'Therefore, the judgment of the trial court classifying Antwon C. as a'rer II sex offender is a6umed. Further, a certified copy of this judgment entry shall constitute the mandate, which shall be sent to the irial court under App.R. 27. Costs shell be taxed underapp.iz 24. CuNxIDIOAAM, P.J., 6UNDHRbs4I.'N and FlErmoN, JJ. To the Clerk: Enter upon the per order of the Court Presiding Judge " See Blakemore u. Blakemore (1963), g Ohio St.3d 217, qgo N.E.2d ii4o. «See Sewr11 D. SYa W--^i =Seeid. V IF^VR id 6,IAN ^