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In re B.J.S.

Court of Appeals of Ohio, Seventh District, Belmont

March 27, 2017

IN THE MATTER OF: B.J.S.

         Criminal Appeal from the Court of Common Pleas, Juvenile Division, of Belmont County, Ohio Case No. 14 JA 052

          For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Scott A. Lloyd Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Brooke M. Burns Assistant State Public Defender

          OPINION

          WAITE, J.

         {¶1} Appellant B.J.S., a delinquent child, appeals his adjudication and disposition entered by the Belmont County Court of Common Pleas, Juvenile Division. The sole issue on appeal is whether the trial court erred and violated Appellant's due process rights when it denied the motion to vacate his adjudication for rape in violation of R.C. 2907.02(A)(1)(b). Based on a review of the record, we find the trial court did not err, as the record demonstrates Appellant was thirteen years of age when the offense occurred. Because Appellant's assignment of error is without merit his adjudication order is affirmed.

         Factual and Procedural Background

         {¶2} On January 21, 2014, a complaint was filed in the Belmont County Juvenile Court alleging that (then) 14-year-old Appellant (D.O.B. 02/05/1999), was a delinquent by means of one count of rape, in violation of R.C. 2907.02(A)(1)(b). The complaint alleged that Appellant engaged in sexual conduct with his half-sister E.S. (D.O.B. 09/13/2005) between September 13, 2011 and July 29, 2013.

         {¶3} A plea hearing was held on February 10, 2014, at which time Appellant appeared. The court ordered that counsel for Appellant be appointed. On July 1, 2014, Appellant admitted to the allegations contained in the complaint. The trial court adjudged Appellant delinquent, advised him of his rights pursuant to Juv.R. 29, and set the matter for a dispositional hearing.

         {¶4} A dispositional hearing was held on September 9, 2014, where the parties discussed the results of the court-ordered evaluation of Appellant and his treatment options. The court ordered Appellant committed to the Ohio Department of Juvenile Services for a minimum of one year with a maximum term to last until his twenty-first birthday, and recommended that he be placed at Paint Creek Youth Center, a non-secure residential treatment facility.

         {¶5} On September 23, 2014, a classification hearing was held so that Appellant could be transferred to Paint Creek Youth Center for treatment. At the hearing the trial court determined that, based on his offense, Appellant was an automatic tier III juvenile sex offender registrant, finding that Appellant was between twelve and fourteen years of age at the time of his offense.

         {¶6} Appellant filed two motions to vacate and void this judgment in the trial court on May 20, 2015. In the first motion, Appellant argued his adjudication for rape pursuant to R.C. 2907.02(A)(1)(b) should be vacated because the state failed to prove he was at least thirteen years old at the time of the rape. In the second motion, he argued that the order classifying Appellant as a tier III juvenile sex offender should be vacated, because the state failed to prove Appellant was age-eligible for registration at the time of the rape. Oral arguments on both motions were heard on June 30, 2015. The trial court issued a judgment entry on August 12, 2015 overruling Appellant's motion regarding his adjudication. The court found that the record established Appellant was thirteen at the time of the rape. In the same judgment entry, the trial court voided its previous order classifying Appellant as a tier III juvenile sex offender because the record demonstrated Appellant was under fourteen when the rape occurred.

         {¶7} Appellant timely appeals from that judgment.

         ASSIGNMENT OF ERROR

         The Belmont County Juvenile Court violated B.J.S.'s right to due process when it denied his motion to vacate his adjudication for rape under the authority of In re D.B.,129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, because the State did not prove and the court did not find that B.J.S. was at least 13 at the time of the offense at ...


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