Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas No.
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and Julie
Kahrs Nessler, Assistant Public Defender, for
The Juvenile Adjudications
On October 14, 2011, defendant-appellant Robert Buttery
admitted in juvenile court to committing acts which, had they
been committed by an adult, would have constituted two counts
of gross sexual imposition. The magistrate's orders of
November 17, 2011, each state that the parties agreed that
"this is a Tier I offense." On December 2, 2011,
Buttery was committed to the Department of Youth Services
("DYS"). The commitment was suspended, and Buttery
was placed on "probation" and ordered to complete
the residential program at Altercrest. The magistrate's
January 13, 2012 decisions stated that "the youth is a
Tier III sex offender" and "[u]pon completion of
the dispositions that were made for the sexually oriented
offense upon which the order is based, a hearing will be
conducted, and the order and any determinations included in
the order are subject to modification or termination pursuant
to ORC 2152.84 and ORC 2152.85." At the ends of both
decisions is typed, "THIS IS A TIER I CLASSIFICATION-NOT
TIER III." Buttery was notified of his duties to
register as a Tier I juvenile-offender registrant. Both of
the magistrate's January 13, 2012 decisions were signed
by the juvenile court judge.
On February 6, 2013, Buttery's placement at Altercrest
was terminated. The juvenile court entered orders on July 29,
2013, releasing Buttery from "official probation"
and placing him on "nonreporting probation with
monitored time." On September 3, 2014, the magistrate
denied Buttery's application to seal the record and noted
that he was to register until 2022 unless reclassified. On
October 14, 2014, the matter was set for an RC. 2152.84
completion-of-disposition hearing. Various continuances
occurred. On April 28, 2015, the magistrate entered decisions
stating that a classification hearing had been held on
January 13, 2012, and that Buttery had been classified as a
Tier III offender. No judge's signature appears on these
decisions, and no notice of reporting requirements was filed.
On May 13, 2015, the juvenile court entered two separate
orders stating, "After independent review, the
Magistrate's Decision and Order in this matter as filed
on 04/28/2015 is hereby approved and adopted as the Judgment
of this Court." The record does not reflect that Buttery
has had his completion-of-disposition hearing in the juvenile
The Criminal Case
In the present case, Buttery was indicted for failing to
register based on one of the juvenile gross-sexual-imposition
adjudications. Buttery filed a motion to dismiss the
indictment, which the trial court overruled. Buttery pleaded
no contest, and the trial court found him guilty and
sentenced him as appears of record. Buttery has appealed.
Buttery's first assignment of error alleges that the
trial court erred in overruling his motion to dismiss the
indictment, because there is no valid order in place
requiring him to register.
The state argues that a motion to dismiss the indictment was
not the appropriate vehicle to challenge Buttery's duty
to register. In State v. Palmer, 131 Ohio St.3d 278,
2012-Ohio-580, 964 N.E.2d 406, ¶ 23, the Ohio Supreme
Court stated, "Under Crim.R. 12(C)(2), trial courts may
judge before trial whether an indictment is defective.
Without a doubt, an indictment is defective if it alleges
violations of R.C. Chapter 2950 by a person who is not
subject to that chapter. There is no set of circumstances
under which such a person can violate the law's
requirements." The court continued, "[S]uch a
determination does not embrace the general issue for trial,
" and the trial court is "well within its
authority" to dismiss an indictment "where the law
simply does not apply." Id. at ¶ 24.
Therefore, Buttery's motion to dismiss the indictment was
the proper vehicle to challenge whether he had a duty to
register. See State v. Amos, 1st Dist. Hamilton Nos.
C-160717 and C-160718, 2017-Ohio-8448, ¶ 5.
Buttery alleges that there is no valid order in place
requiring him to register. He argues that the January 13,
2012 orders classifying him as a juvenile-offender registrant
are invalid because the trial court signed the
magistrate's decision, but did not enter its own judgment
as required by Juv.R. 40(D)(4)(e). Further, Buttery argues
that the juvenile court judge's adoption of ...