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State v. Buttery

Court of Appeals of Ohio, First District, Hamilton

December 20, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
ROBERT BUTTERY, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas No. B-1506464

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

          Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler, Assistant Public Defender, for Defendant-Appellant.

          OPINION

          Deters, Judge.

         Facts and Procedure

         1. The Juvenile Adjudications

         {¶1} 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.

         {¶2} 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 court.

         2. The Criminal Case

         {¶3} 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.

         Analysis

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 ...


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