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In re S.R.B.

December 5, 2008

IN THE MATTER OF: S.R.B.


(Juvenile Appeal from (Common Pleas Court). Trial Court Case No. 20820013.

The opinion of the court was delivered by: Walters, J.

OPINION

{¶1} Defendant-Appellant, S. R. B., appeals a judgment of the Miami County Common Pleas Court, Juvenile Division classifying him as a Juvenile Sex Offender Registrant/Tier III and subjecting him to community notification requirements. Appellant asserts that the trial court failed to make the appropriate finding under R.C. 2950.11(F)(2), that Appellant would have been subject to community notification under the old law, and that the trial court failed to determine whether Appellant was a sexual predator under R.C. 2950.01(E)(1).

{¶2} Because we find that an express finding is only required when the trial court determines that the offender is not subject to community notification, and because the community notification provisions are appropriate based upon the commission of an Aggravated Sexually Oriented Offense under the prior law, we affirm the judgment of the trial court.

{¶3} On three different occasions between July 27, 2007 and December 30, 2007, sixteen year-old S. R. B. engaged in both oral and vaginal intercourse with an eleven to twelve year-old female. He was charged with three counts of delinquency by reason of rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree if committed by an adult. Pursuant to a plea agreement, S. R. B. admitted to and was adjudicated on one of the three counts. Prior to disposition, a sex offender evaluation and a predispositional investigation report were completed; both suggesting that S. R. B. was a moderate risk to re-offend because of a history of sexual activity with girls in addition to the present victim, a significant history of anger, drug, and alcohol problems, and substantial prior involvement in Juvenile Court rehabilitation programs.

{¶4} At disposition, contrary to the recommendation of the State, the Court permitted S. R. B. to remain in the community on probation, with outpatient sex offender treatment. The Court also classified S. R. B. as a Juvenile Sex Offense Registrant/Tier III sex offender, and the Court required Community Notification. It is from this judgment, ordering Community Notification, that Appellant brings this timely appeal, setting forth two assignments of error for our review.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE APPROPRIATE FINDING UNDER OHIO REVISED CODE SECTION 2950.11(F)(2).

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN DETERMINING TO SUBJECT THE APPELLANT TO COMMUNITY NOTIFICATION REQUIREMENTS.

{¶5} In the first assignment of error, S. R. B. argues that the trial court is required to make an affirmative finding that he would have been subject to community notification under the prior law, and in the second assignment of error, the appellant contends that the finding that the offense that S. R. B. committed was an aggravated sexually oriented offense may only be made after a determination that the offender is a sexual predator.

{¶6} The enactment of the "Adam Walsh Law" by the Ohio legislature, has resulted in a confusing array of very poorly worded statutory provisions that require a trial court to constantly refer to the law in effect prior to the enactment of the Adam Walsh Law in order to apply the current law.

{¶7} In this case, the offense that S. R. B. admitted required, by definition, that the court classify him as a Juvenile Offender Registrant/Tier III sex offender. See R.C. 2152.83(A)(1), R.C. 2950.01(A)(1), (G)(1)(a), (M). This classification is non- discretionary, and is based upon the conviction for Rape, R.C. 2907.02(A)(1) (b) after January 1, 2002, while the offender was sixteen years old.

{ΒΆ8} While the above classification is mandatory, the decision to impose the community notification requirements was discretionary with the trial court. R.C. 2152.83(C)(2) provides that after determining that the offender is a tier III offender, and after determining that he is not a public registry-qualified offender, that " * * * the judge may impose a requirement subjecting the child ...


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