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In re O.P.

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 15, 2018

IN RE: O.P. Minor Child

         Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 15101127

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender By: Cullen Sweeney Deputy Public Defender Jennifer Simmons Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: James Sean Gallagher Assistant County Prosecutor

          BEFORE: Keough, J., Laster Mays, P.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, JUDGE.

         {¶1} Defendant-appellant, O.P., appeals from the trial court's judgment denying his motion to vacate the juvenile court's judgment that designated him a Tier I juvenile sex offender under R.C. 2152.83(B). For the reasons that follow, we reverse and remand with instructions for the juvenile court to enter an order vacating the juvenile sexual offender designation.

         I. Facts and Procedural History

         {¶2} On September 23, 2015, O.P. was adjudicated delinquent of rape. He was 15 at the time of his offense. The victim in the case was his 9-year-old sister. On October 30, 2015, the juvenile court held a dispositional hearing and ordered that O.P. be placed in a residential treatment center at Cleveland Christian Home. The juvenile court did not classify O.P. as a sex offender at the time of disposition.

         {¶3} On May 4, 2016 and November 7, 2016, the juvenile court held hearings at which it reviewed O.P.'s placement at the Cleveland Christian Home. On January 5, 2017, the juvenile court held a hearing to determine whether O.P. should be released from the treatment center. The juvenile court agreed to discharge O.P. from the Cleveland Christian Home and return him to his mother's custody, finding that he had successfully completed his program.

         {¶4} The court then proceeded to hold a juvenile sex offender classification hearing at which it classified O.P. as a Tier I offender. O.P. subsequently filed a motion to vacate the classification, arguing that the trial court erred in untimely classifying him upon his release from the Cleveland Christian Home, which is not a secure facility, and that the classification should therefore be vacated. Attached to O.P.'s motion was an affidavit from Mary Rodgers, placement aftercare coordinator at the Cleveland Christian Home, in which she averred that not all the entrances and exits of the Cleveland Christian Home are locked and under the exclusive control of its staff.

         {¶5} On June 6, 2017, after a hearing, the trial court denied O.P.'s motion. O.P.'s counsel requested and was granted an opportunity to present the testimony of Gary Underwood, a case manager from the Cleveland Christian Home. Underwood testified that the Cleveland Christian Home has three programs: the Hope Center, the intensive treatment program, and an open residential program. Underwood said that O.P. was placed in the Hope Center, which is a residential treatment program for juvenile sex offenders. He testified that the Hope Center "is not a locked unit" and that a youth could simply walk away from the facility.

         {¶6} The juvenile court noted Underwood's testimony for the record but stated that its decision would stand notwithstanding Underwood's testimony. This appeal followed.

         II. Law and Analysis

         {¶7} In his assignment of error, O.P. contends that the trial court lacked authority under R.C. 2152.83(B) to classify him as a juvenile sex offender at the time of his release from the Cleveland Christian Home, which is not a secure facility, and that the classification must be vacated. We review this question of ...


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