IN THE SUPREME COURT OF OHIO IN THE MATTER OF: A.R.R., Case No. ^^-10..7 On Appeal from the Ross County Court of Appeals Fourth Appellate District C.A. Case No. IOCA3159 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT A.R.R. MICHAEL M. ATER #0063517 Ross County Prosecuting Attorney ROBERT C. HESS #0009823 Ross County Assistant Prosecuting Attorney (Counsel of Record) Ross County Prosecutor's Office 72 N. Paint Street Chillicothe, Ohio 45601 (740) 702-3115 (740) 702-3106 (Fax) OFFICE OF THE OHIO PUBLIC DEFENDER AMANDA J. POWELL #0076418 Assistant State Public Defender (Counsel of Record) 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167 (Fax) amanda.powell@opd.ohio.gov COUNSEL FOR THE STATE OF OHIO COUNSEL FOR A.R.R. JUNI CI.kRK OF COURT SUpRRME COURT OF OHIO
TABLE OF CONTENTS Page 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 PROPOSITIONS OF LAW...4 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....4 PROPOSITION OF LAW II: The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the juvenile's right to Equal Protection as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution...:...5 PROPOSITION OF LAW III: A juvenile court is without jurisdiction to classify a person as a juvenile sex offender registrant after the person attains twenty-one years of age. R.C. 2151.23(A)(15)...5 CONCLUSION...8 CERTIFICATE OF SERVICE...8 APPENDIX In the Matter of A.R.R., Decision and Journal Entry, Ross County Court of Appeals, Case No. 10CA3159, March 7, 2011... A-1 In the Matter of A.R.R., Opinion on Reconsideration, Ross County Court of Appeals, Case No. 10CA3159, May 4, 2011... A-10 i
EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This Court should accept jurisdiction in this case and hold it for the decisions in In re Smith, Case No. 2008-1624, discretionary appeal granted, 120 Ohio St.3d 1416, 2008-Ohio- 6166; State v. Williams, Case No. 2009-0088, discretionary appeal granted, 121 Ohio St.3d 1449, 2009-Ohio-1820; and In re Messmer, Case No. 2010-0780, discretionary appeal granted, 126 Ohio St.3d 1543, 2010-Ohio-3855. Like Smith and Williams, 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 offenders whose offenses pre-date the implementation of Senate Bill 10. And, like Messmer, this case presents this Court with the opportunity to address whether R.C. 2152.83 violates the Equal Protection clauses of the United States and Ohio Constitutions. Accordingly, A.R.R. asks this Court to accept jurisdiction of his appeal, and hold the first proposition of law for the decisions in Smith and Williams, and hold the second proposition of law for the decision in Messmer. This Court should accept review of the third proposition of law to resolve confusion that has developed in Ohio's courts of appeals regarding R.C. 2151.23(A)(15), which provides that juvenile courts have exclusive, original jurisdiction over juvenile sex offender classification proceedings as follows: To conduct the hearings, and to make the determinations, adjudications, and orders authorized or required under sections 2152.82 to 2152.86 and Chapter 2950. of the Revised Code regarding a child who has been adjudicated a delinquent child and to refer the duties conferred upon the juvenile court judge under sections 2152.82 to 2152.86 and Chapter 2950. of the Revised Code to magistrates appointed by the juvenile court judge in accordance with Juvenile Rule 40; I
In In re G.M., the Third District considered "whether [R.C. 2151.23(A)(15)] grants the juvenile court continuing jurisdiction to classify a delinquent child after the child has attained the age of twenty-one." 188 Ohio App. 3d 318, 2010-Ohio-2295.at 11. (Emphasis in original.) The court held that "the provisions in Chapters 2151 and 2152 specifically limit the jurisdiction of the juvenile court to issue such an order only until the child attains twenty-one and not beyond." Id. at 19. But, in this case, the Fourth District distinguished G.M., because A.R.R.'s initial, erroneous classification had been reversed and remanded to the juvenile court, and A.R.R. had turned twenty-one years of age in the interim. Statutorily created jurisdiction either exists or it doesn't. In In re Andrew, this Court found that "when a juvenile court is exercising jurisdiction over a person adjudicated a delinquent child pursuant to the matter for which the person was adjudicated delinquent, the person adjudicated delinquent shall be treated as a child until he reaches the age of 21." Id. at 6; R.C. 2152.02(C)(6). Because juvenile court jurisdiction ends at a child's attainment of twenty-one years of age, juvenile courts must correctly classify a delinquent child as a juvenile sex offender registrant before that child turns twenty-one. But, A.R.R. has created a grey area of juvenile court jurisdiction that warrants this Court's attention. This case should be accepted and held for Williams, Smith, and Messmer. After those cases are decided, this Court should order briefing in A.R.R.'s third proposition of law. STATEMENT OF THE CASE AND FACTS On December 28, 2009, the Fourth District Court of Appeals reversed A.R.R.'s classification as a tier III juvenile sex offender registrant, and remanded the matter to the Ross County Juvenile Court. In re A.R.R., 4h Dist. No. 09CA3105, 2009-Ohio-7067. In A.R.R., the 2
court found that the juvenile court abused its discretion in classifying A.R.R. as a registrant, because it erroneously believed it was "required" to find him to be a tier III registrant. Id. at 8. On September 12, 2009, A.R.R. turned twenty-one years of age. On March 22, 2010, the Ross County Juvenile Court conducted a juvenile sex offender classification hearing in A.R.R.'s case. A.R.R.'s attorney apprised the court of A.R.R.'s successes in DYS and in treatment, and presented the court with empirical evidence regarding juvenile sex offenders' low risk of reoffending. The attorney also objected to A.R.R.'s being classified as the classification system violates Equal Protection and objected to the retroactive application of S.B. 10 to A.R.R. The State responded that the court "did make a determination back in 2009, in March, of his classification as a Tier III and we feel that...uh... the classification should not be changed at this time." The State did not present any evidence to show that A.R.R. had not been rehabilitated or that he was likely to reoffend. The court again found A.R.R. to be a tier III juvenile sex offender registrant, reasoning, "after considering as I said, all the factors set forth in Ohio Revised Code Section 2950.091 and 2152.83...uh... we do find that Ohio Revised Code Section 2950.01 has classified Rape as a Tier III offense." On April 16, 2010, A.R.R. filed an appeal of his juvenile sex offender classification. On March 7, 2011, the Fourth District affirmed A.R.R.'s classification. On May 4, 2011, the court denied A.R.R.'s application for reconsideration, or in the alternative, request to certify that the judgment is in conflict with the Third District's opinion in In re G.M., 188 Ohio App. 3d 318, 2010-Ohio-2295. This appeal timely follows. R.C. 2950.09 was repealed by S.B. 10 on January 1, 2008. 3
ARGUMENT 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. A.R.R.'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 A.R.R.'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 State v. Williams, Case No. 2009-0088, discretionary appeal granted, 121 Ohio St. 3d 1449, 2009-Ohio-1820 and In re Smith, Case No. 2008-1624, discretionary appeal granted, 120 Ohio St.3d 1416, 2008- Ohio-6166, which will determine whether Senate Bill 10 is constitutional as applied retroactively to adult and juvenile offenders. This case raises the same issues relating to the retroactive application of Senate Bill 10 to adult and juvenile offenders whose offenses predate S.B. 10's enactment as Williams and Smith. Therefore, A.R.R. asks this Court to accept jurisdiction over this case and hold it for the decisions in Williams and Smith. 4
PROPOSITION OF LAW II The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the juvenile's right to Equal Protection as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution. A.R.R.'s right to the equal protection of the laws was violated when the court classified him as a juvenile sex offender registrant pursuant to R.C. 2152.83. This case raises the same issues relating to the Equal Protection Clauses of the United States and Ohio Constitutions as In re Messmer, Case No. 2010-0780, discretionary appeal granted, 126 Ohio St.3d 1543, 2010- Ohio-3855. Therefore, A.R.R. asks this Court to accept jurisdiction over this case and hold it for the decision in Messmer. PROPOSITION OF LAW III A juvenile court is without jurisdiction to classify a person as a juvenile sex offender registrant after the person attains twenty-one years of age. R.C. 2151.23(A)(15) The power of the juvenile court "is derived from Section 1, Article IV of the Constitution of Ohio, and the court is established and its jurisdiction is defined by [O.R.C.] Chapter 215L..." The State, ex rel. Schwartz, Judge, v. Haines, Director of Mental Hygiene and Correction (1962), 172 Ohio St. 572, 573, 179 N.E.2d 46; In re G.M., 3'd Dist. No. 4-09-33, 2010-Ohio- 2295, 7. Further, "[j]uvenile courts are legislatively created courts of limited jurisdiction." In re R.K, 8`h Dist. No. 84948, 2004-Ohio-6918, citing In re Darling, 9' Dist. No. 03CA0023, 2003-Ohio-7184. Juvenile courts have exclusive original jurisdiction over children who are alleged to be delinquent. R.C. 2151.23(A)(1). In delinquency proceedings, "`child' means a person who is under eighteen years of age, except as otherwise provided" in R.C. 2152.02(C)(2)-(6). R.C. 5
2152.02(C)(1); In re Andrew, 119 Ohio St.3d 466, 2008-Ohio-4791, 895 N.E.2d 166, 4. In Andrew, this Court concluded, "the second clause of R.C. 2152.02(C)(6) means that when a juvenile court is exercising jurisdiction over a person adjudicated a delinquent child pursuant to the matter for which the person was adjudicated delinquent, the person adjudicated delinquent shall be treated as a child until he reaches the age of 21." Id. at 6. The jurisdictional language regarding juvenile sex offender classification hearings also reflects that juvenile court jurisdiction is limited. Specifically, 2151.23(A)(15) provides that the juvenile court has original jurisdiction "[t]o conduct the hearings and to make the determinations, adjudications, and orders authorized or required under sections 2152.82 to 2152.86 and Chapter 2950. of the Revised Code regarding a child who has been adjudicated a delinquent child..." (Emphasis added.) While R.C. 2151.23 grants the juvenile court the authority to conduct juvenile sex offender hearings, it only provides the court the power to conduct the hearings for those who can be considered "a child." Further, R.C. 2152.83 and R.C. 2152.831 only pertain to the classification of "a child." The Third District has considered "whether [R.C. 2151.23(A)(15)] grants the juvenile court continuing jurisdiction to classify a delinquent child after the child has attained the age of twenty-one." G.M., at 11. (Emphasis in original.) The court held that "the provisions in Chapters 2151 and 2152 specifically limit the jurisdiction of the juvenile court to issue such an order only until the child attains twenty-one and not beyond." Id. at 19. A.R.R. was born on September 12, 1988. Accordingly, on March 22, 2010, he was twenty-one years of age. A.R.R. was only a child until he attained twenty-one years of age at 12:01 a.m. on September 12, 2009. See State v. Yarger, 181 Ohio App. 3d 132, 2009-Ohio-543, 22 ("[A]n individual becomes a year older at 12:01 a.m. the day of tl:eir birth.). In his appeal to 6
the Fourth District, A.R.R. asserted that the classification order issued after his twenty-first birthday was void, as he was not a child at the time the court conducted the juvenile sex offender classification hearing. In this case, the Fourth District distinguished A.R.R.'s case from In re G.M., because A.R.R.'s initial, erroneous classification had been reversed and remanded to the juvenile court, and A.R.R. had turned twenty-one years of age in the interim. Therefore, the court found that R.C. 2152.82(C) provides that a juvenile sex offender classification order issued before a child's twenty-first birthday is not affected by the child's turning 21. Op. at 8. This rationale is flawed, first, because the holding presumes that an order of remand from a court of appeals confers jurisdiction where none exists; second, that an erroneously entered order can remain valid for jurisdictional purposes; and third, that the Fourth District's opinion in A.R.R.'s case can stand, when it turns on the application of R.C. 2152.82(C) to A.R.R., when his classification hearing was conducted pursuant to R.C. 2152.83 (as a first-time offender) not R.C. 2152.82 (which is reserved for those who reoffend after they have been adjudicated delinquent for a sex offense before). The Fourth District's opinion in this matter cannot be reconciled with the Third District's decision in G.M.; therefore, A.R.R. asks this Court to accept review and resolve the confusion surrounding juvenile sex offender classification hearings conducted after a person's attainment of twenty-one years of age. 7
CONCLUSION This Court should accept A.R.R.'s appeal because it raises substantial constitutional questions, involves a felony-level offense, and is of great public and general interest. For the reasons argued above, A.R.R. respectfully requests that this Court accept jurisdiction of this appeal and hold it for the decisions in Smith, Williams, and Messmer. A.R.R. asks this Court to order briefing in his third proposition of law after Smith, Williams, and Messmer are decided. Respectfully submitted, OFFI^E F THE OHIO PUBLIC DEFENDER ANI!(A J. POWELL #0076418 Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 644-0708 (Fax) amanda.powell@opd.ohio.gov COUNSEL FOR A.R.R. CERTIFICATE OF SERVICE The undersigned counsel certifies that a copy of the foregoing Memorandum in Support of Jurisdiction of Appellant A.R.R., was served by ordinary U.S. Mail, postageprepaid, this 17th day of June, 2011 to Robert C. Hess, Assistant Prosecutor, Ross County Prosecutor's Office, 72 N. Paint Street, Chill'v& Ohio 45601. AMANDA J. POWELL #0076418 Assistant State Public Defender #345773 COUNSEL FOR A.R.R. 8
IN THE SUPREME COURT OF OHIO IN THE MATTER OF: A.R.R., Case No. On Appeal from the Ross County Court of Appeals Fourth Appellate District C.A. Case No. 10CA3159 APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT A.R.R.
IN THE COURT OF APPEALS OF OHIOf,5 FOURTH APPELLATE DISTRICT ROSS COUNTY IN THE MATTER OF A.R.R. Case No. 10CA3159 Adjudicated Delinquent DECISION AND JUDGMENT ENTRY Child. APPE= COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and Amanda J. Powell, Assistant Ohio Public Defender, 250 East Broad Street, Ste. 1400, Columbus, Ohio 43215 CCUNSEL FOR r ^ T^^, Michael M. Ater, Ross County Prosecuting PPE^r^^L' Attorney, and Robert C. Hess, Ross County Assistant Prosecuting Attorney, 72 North Paint Street, Chillicothe, Ohio 45601 CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: ABELE, J. This is an appeal from a Ross County Common Pleas Court, Juvenile Division, judgment that classified A.R.R., defendant below and appellant herein, a Tier III juvenile Sex Offender. Appellant assigns the following errors for review: FIRST ASSIGNMENT OF ERROR: COURT ERRED IT III JUVENILE CLASSIFIEDC [ANRYRJ] V AS I A E TIER SEX OFFENDER REGISTRANT AFTER HE TURNED TWENTY-ONE YEARS OF AGE." SECOND ASSIGNMENT OF ERROR: "THE ROSS COUNTY JUVENILE COURT ABUSED ITS DISCRETION WHEN IT CLASSIFIED [A.R.R.] AS A
ROSS, 10CA3159 2 TIER III JUVENILE SEXUAL OFFENDER REGISTRANT WITHOUT CONSIDERING THE PROPER FACTORS AND APPLYING CURRENT LAW." THIRD ASSIGNMENT OF ERROR: "THE TRIAL COURT ERRED WHEN IT APPLIED SENATE BILL 10 TO [A.R.R.], AS THE LAW VIOLATES HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW." FOURTH ASSIGNMENT OF ERROR: "THE RETROACTIVE APPLICATION OF SENATE BILL 10 TO [A.R.R.] VIOLATES THE EX POST FACTO. CLAUSE OF THE UNITED STATES CONSTITUTION AND THE RETR9Z,^CTIVITY CLAUSE OF SECTION 28, ARTICLE II OF THE OHIO CONSTITUTION." A.R.R. was previously adjudicated a delinquent child for having committed a sexually oriented offense. At the March 16, 2009 hearing, the magistrate recommended that he be classified a Tier III sex offender under the Adam Walsh Child Protection and Safety Act (AWA) enacted in 2007. See Am.Sub.S.B. 10, 2007 Ohio Laws, File No. 10. Two days later, the Juvenile Court agreed with the magistrate and found "the child is reauired to be classified as a Tier III Juvenile Sex Offender Registrant pursuant to O.R.C. 2152.83(A)." (Emphasis added.) On appeal, we reversed the judgment because it appeared that the trial court felt compelled to make that classification based on appellant's age, when, in fact, it had discretion to decide the issue. See In re A.R.R., RossApp. No. 09CA3105, 2009-Ohio- 7067 (A.R.R. I). On remand, the trial court again considered the matter and classified appellant a Tier III sex offender. This
ROSS, 10CA3159 3 appeal followed. I Appellant's first assignment of error raises the issue of whether the trial court possessed jurisdiction to classify him a Tier III sexual offender. By way of background, appellant's date of birth is September 12, 1988. Thus, he turned twenty-one years of age on September 12, 2009. Appellant cites a recent decision from the Third District that held a Juvenile Court loses jurisdiction to classify an offender a Tier III sex offender once the offender reaches the age of twenty-one years. See In re Mack, Defiance App. No.No. 4-09-33, 2010-Ohio-2295, at 118. Appellant argues that he was twenty-one at the time of the March 22, 2010 hearing, and, thus, the trial court lacked jurisdiction. He urges us to follow Mack and vacate his Tier III classification. In the case sub judice,ve first point out that the March 22, 2010 hearing was held on remand of A.R.R. I. Appellant's original classification hearing was held March 16, 2009, and the judgment that classified him a Tier III offender was issued on March 19, 2009. Those proceedings all occurred in advance of appellant's twenty-first birthday. 1n M-ac.k, the Third District noted that it did not decide the issue '^as to what authority the juvenile court may or may not have after a child's 21st birthday, to issue orders to enforce or otherwise modify a classification
ROSS, 10CA3159 4 order that was entered before the child's 21st birthday." Id. at 517, fn. 1. That, however, is the precise issue before us. In the case sub judice, appellant reached the age of twentyone years while A.R.R. I was on appeal. our reversal and remand ensured that the trial court's classification was not made on the basis of its belief that it was required to classify appellant a Tier III offender. We noted that the Juvenile Court "may re-impose such classification on remand" if it believed the evidence warranted such classification. 2009-Ohio-7067, at 48. We further note that under R.C. 2152.82(C), the classification as a juvenile offender registrant is not affected by a juvenile's twenty-first birthday. Although.in the case at bar we reversed and remanded the trial court's March 18, 2009 classification order, the fact remains that the court issued the original order before appellant's twenty-first birthday. Accordingly, under the particular facts and circumstances present in this case, we conclude the Juvenile Court possessed jurisdiction on remand to re-enter the Tier III classification after appellant's twenty-first birthday. Accordingly, we hereby overrule appellant's first assignment of error. II In his second assignment of error, appellant asserts that his classification as a Tier III offender constitutes an abuse of
ROSS, 10CA3159 5 the trial court's discretion. We disagree.' This Court has held that a Juvenile Court has discretion to classify a delinquent as a Tier III sex offender. A.R.R. I, supra at 17; In re A.M., Athens App. No. 09CA07, 2009-Ohio-7066, at 17. When a trial court has the discretion to perform an act, its decision is typically reviewed under the abuse of discretion standard. Generally, an abuse of discretion constitutes more than an error of law or judgment; rather, it implies the court's attitude was unreasonable, arbitrary or unconscionable. See, e.g., Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St.3d 339, 342, 695 N.E.2d 1140; Malone v. Courtvard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448, 659 N.E.2d 1242. An appellate court may not find an abuse of discretion simply by substituting its judgment for that of the trial court. See State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 732,. 654 N.E.2,d 1254; In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181. 1 Although appellant phrases the text of his assignment of error in terms of "abuse of discretion," he urges us to review the trial court's determination de novo and cites In re J.S., Wayne App. No. 07CA0035, 2007-Ohio-6402, at 12. The In re J.S. court, however, made the remark while analyzing the trial court's interpretation of law. We agree that such rulings are reviewed on appeal de novo, but here we are reviewing the trial court's application of law to the facts to determine whether a Tier III classification is warranted. We concede that little case law exists to establish an appropriate standard of review, but for those reasons discussed infra in this opinion, we review this matter under an abuse of discretion standard.
ROSS, loca3159 6 our review of the March 22, 2010 classification hearing transcript reveals that the magistrate heard arguments from both the prosecutor and appellant's counsel. In re-classifying appellant as a Tier III offender, the magistrate considered all of the "factors and circumstances" surrounding the case, including the rape victim's age (four years). The magistrate also explicitly stated that "all the factors set for in... [R.C.] 2152.83"2 had been considered. We also emphasize that the trial court has been involved with this matter since 2007 and is in the best position to weigh the facts and circumstances and to assess the weight and credibility of the evidence. Although defense counsel made an impassioned plea on appellant's behalf, and his appellate counsel argues that more emphasis should have been placed on those arguments, we find nothing to persuade us that the trial court's decision to classify him a Tier III sex offender is arbitrary, unreasonable or unconscionable. Accordingly, we hereby overrule appellant's second assignment of error. ZR.C. 2152.83(D) specifies that a juvenile court should consider all relevant factors including, but not limited to, the nature of the sexually oriented offense as well as the public interest and safety. Id. at (1)&(3). We parenthetically note that nothing in the statute requires the court to explicitly set forth in its judgment entry how it weighed each individual factor. See generally In re B.W.K., Portage No. 2009-P-58, 2010- Ohio-3050, at 122.
ROSS, 10CA3159 III 7 We jointly consider appellant's third and fourth assignments of error wherein he argues, respectively, that the AWA (1) violates his Equal Protection Rights, and (2) should not apply to him retrospectively as it violates the United States Constitution's ban on Ex Post Facto laws, as well as the Ohio Constitution's ban on retroactive laws. We find no merit to these arguments. Ohio courts have held that the AWA does not violate a juvenile offender's equal protection rights. See e.g. In re C.P., Athens App. No. 09CA41, 2010-0hio-1484, at 9[9[18-28; In re R.D., Licking App. No. 09CA97, 2010-Ohio-2986, at 136. We have also rejected the argument that the AWA violates either the federal constitution's ban on ex post facto laws, or the Ohio Constitution's ban on the retroactive application of law. See State v. Anderson, Athens App. No. 09CA18, 2009-Ohio-7014, at 9f7; State v. Coburn, Ross App. No. 08CA3062, 2009-Ohio-632, at 9I18-13. Nothing in appellant's brief prompts us to reconsider these decisions. Thus, unless and until the Ohio Supreme Court holds otherwise, we continue to adhere to those decisions. Accordingly, we hereby overrule appellant's third and fourth assignments of error. After having considered all of the errors appellant assigned and argued, we hereby affirm the trial court's judgment.
ROSS, 10CA3159 JUDGMENT AFFIRMED.
ROSS, 10CA3159 9 JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court, Juvenile Division, to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Harsha, P.J. & Kline, J.: Concur in Judgment &Oinion For the 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.
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT?^^j^ ^=EJ-^j ROSS COUNTY IN THE MATTER OF A.R_R.. Case No. loca3159 Adjudicated Delinquent Child. ENTRY ON APPLICATION FOR RECONSIDERATION, OR IN THE ALTERNATIVE, TO CERTIFY A CONFLICT APPEARANCES: COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and Amanda J. Powell, Assistant State Public Defender, 250 East Broad Street, Ste. 1400, Columbus, Ohio 432151 ABELE, J. This matter comes on for review of appellant's application for reconsideration, pursuant to App.R. 26(A). Appellant requests that we reconsider our March 7, 2011 judgment wherein we affirmed his designation as a Tier III Juvenile Sex Offender. Alternatively, if we do not change our opinion as to that ruling, appellant asks us to certify to the Ohio Supreme Court for final resolution a conflict between this case and a case from the Third Appellate District. See App.R. 25. 1 The State of Ohio has not entered an appearance regarding appellant's application for reconsideration.
ROSS, 10CA3159 2 At the core of appellant's argument is our interpretation of In re G.M., 188 Ohio App.3d 318, 935 N.E.2d 459, 2010-Ohio-2295.1 We held that case was inappositive to -this one, as appellant in this case turned twenty-one years old before his adjudication as a Tier III sex offender whereas appellant in In re G.M. turned twenty-one after such adjudication. App.R. 26(A) does not specify an exact standard under which an application for reconsideration should be reviewed. The test generally applied is to determine if the application for reconsideration calls to the court's attention an obvious error in its decision, or raises an issue for consideration that was either not considered or not fully considered when it should have been. See e.g. State v. Wong (1994), 97 Ohio App.3d 244, 246, 646 N.E.2d 538; Woerner v. Mentor Exempted Village School Dist. Bd. of Edn. (1993), 84 Ohio App.3d 844, 846, 619 N.E.2d 34; State v. Gabel (1991), 75 Ohio App.3d 675, 676, 600 N.E.2d 394; Skillman v. Browne (1990), 68 Ohio App. 615, 617, 589 N.E.2d 407; Columbus v. Hodae (1987), 37 Ohio App.3d 68, 523 N.E.2d 515. Appellant argues that we erred in distinguishing this case from In re G.M. because the issues are precisely the same, and that if we decline to follow In re G.M., we should certify this case to the Ohio Supreme Court as being in conflict. We find 2 The In re G.M. case was not yet published at the time of our decision. Thus, we cited to the case in its unpublished form.
ROSS, 10CA3159 3 neither argument persuasive. As noted in our decision, appellant was adjudicated a Tier III sex offender before he turned twenty-one years old. 2011- Ohio-1186, at 9[9[5-6. He reached his twenty-first birthday during the appeal from that adjudication. Our Third Appellate District colleagues expressly stated as follows in In re G.M.: "We do not address in this case the issue as to what authority the juvenile court may or may not.have after a child's 21st birthday to issue orders to enforce or otherwise modify a classification order that was entered before the child's 21st birthday." (Emphasis added.) 2010-Ohio-2295, at 117, fn. 1. Appellant's re-adjudication as a Tier III sex offender was, in essence, an "order to enforce or otherwise modify" the first such classification. A review of the facts in In re G.M. reveal, however, that no sexual offender adjudication was made until after the juvenile had turned twenty-one years old and was released from Ohio Department of Youth Services custody. 2010-Ohio-2295, at 192-4. That is not the case here as the sex offender status hearing was conducted before appellant's twentyfirst birthday. Thus, the factual posture of In re G.M. is different from this case and we believe the cases are distinguishable. Appellant, therefore, has not persuaded us that an "obvious error" exists in our decision that would merit reconsideration. See App.R. 26(A). Further, because the cases are factually distinguishable, we find no basis to certify them to the Ohio Supreme Court as being
ROSS, 10CA3159 4 in conflict. See Whitelock v. Gilbane Blda. Co. (1993), 66 Ohio St.3d 594, 599, 613 N.E.2d 1032. Appellant's application for reconsideration or, in the alternative, motion to certify a conflict are without merit and are hereby denied. Harsha, P.J. & Kline, J.: Concur FOR TH