Update: On May 21, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the argument here.

On August 6, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Robert Buttery, 2018-0183. At issue in this case is whether juvenile adjudications can satisfy the elements of a failure to register in violation of R.C. 2950.04 without violating due process.  Justice Fischer has recused himself from the case, and Eighth District Court of Appeals Judge Eileen A. Gallagher will sit for him.

Case Background

In 2011, fourteen-year old Robert Buttery (“Buttery”) was adjudicated delinquent for two counts of what would constitute gross sexual imposition if committed by an adult. Because the charges were delinquency offenses, Buttery was not afforded a jury trial. As a result of the juvenile adjudication, Buttery was ordered to register as a Tier 1 juvenile sex offender.

In November of 2015, Buttery was indicted for failing to register with the Hamilton County Sheriff’s office in violation of R.C. 2950.04. Buttery filed a motion to dismiss the indictment claiming that he did not have a duty to register due to various errors in the juvenile court proceedings. Hamilton County Common Pleas Court Judge Megan Shanahan overruled Buttery’s motion to dismiss and found him guilty of failure to register.

The Appeal

On appeal, Buttery additionally argued that the failure to register conviction violated his constitutional due process rights. Buttery argued that juvenile adjudications cannot satisfy elements of an offense committed as an adult. In a split decision authored by Judge Dennis Deters, joined by Judge Russell Mock, the First District Court of Appeals affirmed the trial court’s decision to convict Buttery.

The First District found that Buttery’s conviction did not violate his constitutional due process rights, declining to extend the holding of State v. Hand to a failure to register offense. The appeals court found that in this context, the juvenile adjudication is an element of the offense of failure to register, not a penalty enhancement.

Judge Penny Cunningham dissented for the reasons set forth in her dissent in the appellate decision in State v. Carnes, in which she wrote that “if juvenile adjudications are not reliable enough to enhance a criminal sentence, surely they are not sufficiently reliable to alone sustain proof beyond a reasonable doubt of an element of a crime.”

Votes to Accept the Case**

Yes: Chief Justice O’Connor,*Justices Kennedy, Stewart, French,  Donnelly and former Justice DeGenaro*

*Chief Justice O’Connor and former Justice DeGenaro would also accept the case on proposition of law No. III.

No: Justice DeWine

Justice Fischer did not participate in this case.

**This case was held and briefing stayed until the decision was released in State v. Carnes.

Key Statutes and Precedent

R.C. 2950.04 (A child who is adjudicated a delinquent child for a sexually oriented offense is required to register with the county within three days of the offender coming into a county.)

Apprendi v. New Jersey, 530 U.S. 466 (2000) (other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.)

In re Anderson, 92 Ohio St.3d 63, 748 N.E.2d 67 (2001) (juvenile courts are civil and not criminal courts and should therefore focus on rehabilitation and care of the child.)

Miller v. Alabama, 567 U.S. 460 (2012) (children who commit crimes are less culpable than their adult counterparts.)

Alleyne v. United States, 570 U.S. 99 (2013) (expanding Apprendi to hold that any fact that increases the penalty for a crime beyond the mandatory minimum sentence must be submitted to the jury and proved beyond a reasonable doubt.)

State v. Bode, 2015-Ohio-1519 (where a juvenile adjudication was uncounseled and where there was no effective waiver of counsel, the juvenile adjudication could not be used to enhance the penalty of a subsequent crime committed as an adult.)(syllabus.)

State v. Hand, 2016-Ohio-5504 (expanding Bode to hold that juvenile adjudications, whether or not counseled, could not be used to enhance the degree or sentence of a subsequent crime committed as an adult.)

In re D.S., 2016-Ohio-1027 (It is not a due process violation to impose upon a juvenile registration and notification requirements that extend beyond the age of 18 or 21.)

State v. Carnes, 2018-Ohio-3256 (declining to expand Hand and holding that a juvenile adjudication can be used as an element of the weapons-under-disability offense.)

Buttery’s Argument

It is fundamentally unfair, and a violation of due process, to use a juvenile adjudication to satisfy an element of an offense committed as an adult.

The juvenile system is designed to rehabilitate delinquents, not create a long-lasting criminal record that follows children into adulthood. Allowing a felony conviction based on a juvenile adjudication undercuts the rehabilitative purpose and confidential nature of the juvenile system.

Case law indicates that the juvenile system is meant to prevent children from becoming criminals at a young age by correcting their mistakes and removing the consequences of their criminal behavior at a young age. The rehabilitative purpose of the juvenile system is further evidenced by the differences in juvenile dispositions and adult sentences. Juvenile dispositions are intended to provide for the mental development of delinquent children, not create long-term punishment. Adult sentences are meant to protect the public from future crimes and punish the offender.

Juveniles should not be punished in the same manner as adults because their mental state is inherently less culpable than that of adults. Therefore, Buttery’s juvenile adjudication should not follow him into adulthood by serving as the basis of a failure to register charge. Furthermore, the juvenile system promises confidentiality. The indictment to register used Buttery’s full name and references his sexual offenses. Buttery’s childhood indiscretions are now on full display for the public and will follow him for life.

Allowing a felony conviction based on a juvenile adjudication is fundamentally unfair. Children are biologically different from adults and are incapable of completely understanding the risks and consequences of their actions. Because of this, children are less culpable than adults. Punishing an adult based on his childhood actions violates fundamental fairness.

Furthermore, the juvenile system lacks fundamental due process protections to ensure that a later adult conviction, based on a juvenile adjudication, does not violate the adult’s 14th Amendment rights. This court recognized in State v. Hand that it violates the Due Process Clause of the U.S. Constitution and the Due Course of Law provision of the Ohio Constitution to use a juvenile adjudication as a previous conviction that enhances the degree or sentence of an adult offense. The holding in Hand should be expanded to include Buttery’s situation because to comply with due process, the elements of the offense must be submitted to a jury. Just as it is a violation to use a juvenile adjudication to enhance the penalty of an adult offense, it is a violation to use a juvenile adjudication to satisfy an element of an adult offense.

Finally, the Apprendi exception for prior convictions does not apply. In Apprendi, the U.S. Supreme Court stated that a prior conviction is not a penalty-enhancing fact to be submitted to the jury. This Court in Hand declined to include juvenile adjudications within the Apprendi exception for prior convictions because the procedure for juvenile adjudications does not require a jury trial. Buttery’s juvenile adjudication did not result from a constitutionally sound process because he never had the right to a jury trial. Thus, the use of this adjudication to satisfy an element of a crime, when the element was never before a jury, violates Buttery’s due process rights.

The failure to register statute is distinguishable from the statute at issue in State v. Carnes. Therefore, the holding in Carnes is inapplicable to Buttery’s situation. The failure to register statute mirrors the statute in Hand; juvenile adjudications are equated with adult convictions. Therefore, the holding in Hand should be extended to apply to the failure to register statute.

Finally, the Ohio Constitution affords greater protection for the right to a jury trial. Ohio’s consistent protection of the right to a jury trial should extend to situations where a juvenile adjudication is serving as the basis of an adult conviction.

State’s Argument

Buttery’s arguments that State v. Hand should be extended and State v. Carnes distinguished are without merit.  And Buttery’s claim that his due process rights were violated should have been raised at the trial court level. The failure to do so constitutes a waiver of the issue, and does not meet the plain error standard. Even if this court decides that Buttery’s claim warrants consideration of a constitutional challenge, the challenge is without merit.

The process for the registration of juveniles is statutorily created, and is distinct from the process for adults. The statute creates a blended sentence scheme in which additional due process considerations are given to juvenile adjudications. Thus, sufficient due process considerations are provided for in the statute’s framework.

Buttery improperly relies on State v. Hand, which determined that a juvenile adjudication cannot be used to enhance the degree or sentence for a subsequent offense committed as an adult without violating due process. Fundamental to Hand was the fact that the defendant’s prior juvenile adjudication was considered a “conviction,” creating a mandatory prison term that without the juvenile adjudication, would not have existed. Because there is no right to a jury trial, a juvenile adjudication cannot properly be understood as a conviction. This is distinct from Buttery’s situation, which is more similar to State v. Carnes, a ruling that explicitly declined to broaden the holding of Hand. The statute in Carnes did not require an actual conviction, but rather a juvenile adjudication, just like the statute here. Furthermore, Buttery’s punishment has not been enhanced because of the juvenile adjudication. The juvenile adjudication only provides the basis of the duties set forth in the statute and does not influence the degree or extent of punishment.

Finally, the public policy issues Buttery elucidates are issues for the legislature to decide and do not warrant a constitutional attack on R.C. 2950.04.

Buttery’s Proposition of Law Accepted for Review

Proposition of Law No. 1: Juvenile adjudications cannot satisfy elements of an offense committed as an adult. Fifth, Sixth, and Fourteenth Amendments, United States Constitution; Sections 5 and 16, Article 1, Ohio Constitution. State v. Hand, 2016-Ohio-5504; State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156; Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 435 (2000).

Buttery’s Propositions of Law Not Accepted for Review

Proposition of Law No. 2: To enter a valid, enforceable judgment, Juv.R. 40 requires the Juvenile Court to enter its own judgment and this judgment must be date-stamped and journalized with the clerk of courts.

Proposition of Law No. 3: R.C. 2152.84 is mandatory and requires the juvenile court to review a youth’s classification upon the completion of disposition and enter a decision which reduces the youth’s tier level, removes them from the registry, or maintains the classification. 14th Amend. U.S. Constitution; Article 1, Section 9 of Ohio Constitution.

State’s Proposed Counter Proposition of Law

Constitutional due process rights are not violated when an indictment for a R.C. 2950.04 failure to register offense committed when the appellant is an adult sets forth as an element of the offense that the basis of the duty to register is a juvenile adjudication for a sexually oriented offense.

Amicus in Support of Buttery

Office of the Ohio Public Defender and the Children’s Law Center, Inc.

The Office of the Ohio Public Defender (“OPD”) is a state agency designed to represent criminal defendants, both adult and juvenile, and to coordinate defense efforts throughout Ohio. The OPD, through its Juvenile Department, provides a right of access to the courts for juveniles who have been committed to the Ohio Department of Youth Services. The Children’s Law Center (“CLC”) is a non-profit organization committed to the protection and enhancement of the legal rights of children. The CLC provides legal representation for youth and advocates for systemic and societal change.

Juvenile adjudication is meant to rehabilitate delinquent children, not subject them to lifelong punishment. Whereas the purpose of the criminal system is to punish offenders and protect society, juvenile court is decidedly different. To punish juvenile offender registrants for failing to comply with R.C. 2950.04 is contrary to the rehabilitative purpose and goal of the juvenile system. Unlike traditional juvenile dispositions, the requirement to register continues beyond the age jurisdiction of the juvenile court and compromises the anonymity of the juvenile.

Furthermore, placing juvenile offenders on sex offender registries causes harm and does not improve public safety. Children on sex offender registries face significant and lifelong barriers to housing, employment, and education for mistakes committed in their youth. The ultimate result of placing child sex offenders on a registry list causes these children to be societally ostracized, which is directly contrary to the rehabilitative purpose of the juvenile system.

This punitive system for child sex offenders is unnecessary, as recidivism is infrequent and unlikely. Children act impulsively and are unable to see the consequences of their actions. Usually, child sex offenses are not based on pedophilia, but sexual curiosity. Because of this, registering juveniles does not increase public safety. The only purpose registration serves is to harm the juvenile.

Finally, the statute violates fundamental fairness by imposing a severe punishment on an offense that is no more than a probation violation. The statute uses a juvenile adjudication as the basis for a criminal penalty in adulthood and, in so doing, forces the juvenile offender to carry his childhood mistakes with him for life.

Amici would adopt Buttery’s proposed proposition of law.

Student Contributor: Maggie Pollitt