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

On August 6, 2019, the Supreme Court of Ohio heard 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 sat for him.

Case Background

In 2011, then-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 I 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. The Common Pleas Court judge 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.”

Read the oral argument preview of the case here.

Key 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.)

R.C. 2950.99 (Penalty provisions for sexually oriented offenses.)

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.)

In re C.P., 2012-Ohio-1446 (Juveniles are entitled to “fundamental fairness,” and automatic, lifelong registration as a sex offender for juveniles violates this principle of due process.)

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.)

At Oral Argument

Arguing Counsel

Julie Kahrs Nessler, Assistant Public Defender, Office of the Hamilton County Public Defender, for Appellant Robert Buttery

Paula E. Adams, Assistant Prosecutor, Hamilton County, for Appellee State of Ohio

Buttery’s Argument

A juvenile adjudication is not a conviction of a crime and should not be treated as one. In the context of a failure to register prosecution, a juvenile adjudication is treated as a felony criminal conviction and used to determine the level of the offense of failure to register.  This use of a juvenile adjudication is a sentence enhancement and violates Hand. Additionally, the juvenile adjudication is an element of the offense, and one which has never been tested before a jury. This violates due process and runs afoul of Apprendi. Because a juvenile offender registrant conviction for failure to register violates Hand, Apprendi and due process, the decision of the First District must be reversed.

Any punishment for failure to register must remain in juvenile court, as must all juvenile adjudications, in order to maintain their juvenile nature.  The juvenile court always has the ability to enforce its own orders. That would be the mechanism to ensure that the juvenile court’s registration order would be complied with, but also would ensure that the juvenile’s due process rights are not violated.  Even though the penalties available in juvenile court are substantially different from those available in adult court, that is consistent with juvenile jurisprudence, and what is known about the developing juvenile brain and a juvenile’s capacity for change. So it is wholly appropriate for the penalties for failure to register to be different for juveniles than they are for adults.

This case is wholly distinguishable from the decision in Carnes, in which the court decided that juvenile adjudications may be used in an adult prosecution for a weapons-under-disability offense.  In Carnes, the juvenile adjudication was not treated as a prior conviction. In this case, the juvenile adjudication is treated as a conviction, and dictates the level of the offense for failure to register.  What was previously civil is now being deemed and converted into a criminal conviction, and that is exactly what this court disallowed in Hand. The weapons-under-disability statute, which was at issue in Carnes, does not treat the juvenile adjudication as a prior conviction, but as a disabling condition, which could have been created in a number of non-jury ways. That was one of the features that this court found was distinguishable. So, for the weapons-under-disability statute, the lack of jury trial was irrelevant.  The same cannot be said for these failure to register prosecutions.  The only way a person can be placed on the registry is by the commission of a sexually oriented offense.

The court would also not need to overrule D.S. to decide in Buttery’s favor. The focus in D.S. was the juvenile’s due process rights in juvenile court, where jurisdiction still remained.  The issue before this court today is decidedly different. This prosecution involves an adult punishment.  The failure to register always relates back to the underlying adjudication. If it was only relating to the duty to register, it would be the same degree of offense for all people who are on the registry, similar to weapons-under-disability.  Regardless of the prior conduct, it would be a certain offense level.  That is not true here. This relates back to the adjudication. It is the adjudication that dictates the level of the offense for the failure to register. So this context is unique. A failure to register punishes not only the conduct of failing to comply, but also the underlying adjudication. And the lack of a right to a jury trial on that adjudication creates the violation in this case.

Because the clear language of the statute makes the juvenile adjudication an element of the offense, it must be submitted to a jury, because if not, it violates Apprendi and due process.

State’s Argument

The state absolutely disagrees that the remedy for individuals who violate the registration duties as an adult is to go back and be prosecuted for that violation in the juvenile system.  The violation is for conduct that occurred when the individual is an adult.

This case is readily distinguishable from Hand. The concern there was turning a juvenile adjudication into a conviction, because the statute there only dealt with convictions. Those with a duty to register here have already been classified and adjudicated as juveniles. Any remaining concerns are very much addressed by the unique nature of the juvenile classification process.

There are a number of ways to relieve the juvenile of the registration requirement.  Before the juvenile becomes an adult, he has the opportunity to have the classification modified. In this case because Mr. Buttery was designated a Tier I offender, the classification could remain the same or be completely removed at the completion of disposition.  There are also multiple opportunities for modification as an adult, but Mr. Buttery has not yet availed himself of them. But he has the opportunity to petition the court for the removal of the classification.

Unlike Mr. Carnes, who was prosecuted 20 years later for a disability he never knew he had, Mr. Buttery completely knew he had the duty to register. It was all set forth, and he’s had multiple opportunities to have it reviewed, but he has not availed himself of that. There are extra layers of due process built into the juvenile system, and those can’t be ignored. And while Mr. Buttery has made numerous procedural challenges to his classification, he never raised a due process challenge in this case in front of the trial court.  He only raised that argument for the first time before the Court of Appeals.  This case is very much in line with this court’s precedent in Carnes, and the decision of the First District should be affirmed.

What Was On Their Minds

The Juvenile Adjudication

Could a juvenile ever be found to be in violation of a reporting requirement, asked Justice French?

Judge Gallagher asked several questions about the confusion over the classification in the juvenile court. The prosecutor explained there had been a typographical error, since corrected, over the proper classification tier in the case.

Staying in Juvenile Court

Is there a process for that currently, asked Justice French?

Since the jurisdictional statute relied on by the defense talks about a child, how does that grant jurisdiction to the juvenile court after they are 21, asked Justice DeWine?

What would the consequences be in a juvenile court for failure to register, asked Chief Justice O’Connor? Are they substantially different from the penalties available to an adult who fails to register?

The Registration Requirement

There’s a way to relieve the juvenile of the registration requirement, is there not, asked Chief Justice O’Connor? It’s proactive, isn’t it? It’s not automatic upon becoming an adult that the court has an obligation to revisit it?

Past Precedent

To adopt the defense position must the court overrule D.S. asked Justice DeWine? D.S. says it doesn’t violate due process to impose a legal duty to register on someone. If there is a legal duty to register, why can’t they be prosecuted for failure to do that?

Due Process

Hasn’t the court already said that there was sufficient due process on imposing that duty to register into adulthood, asked Justice DeWine?   The question now isn’t whether there was sufficient due process then, but is there due process now, he commented. Isn’t the element that the person violated the duty to register?

How it Looks from the Bleachers

To Professor Emerita Bettman

Student Contributor Maggie Pollitt and I disagree on this one, and I hope she is right, but my prediction is not necessarily because of anything argued in this case. I agree with Maggie that Ms. Nessler gave the more effective argument. The bench was surprisingly quiet, given that this has been an ongoing issue in its juvenile jurisprudence.  I’m calling this for the state because I think the general philosophy evinced in cases like C.P. and Hand no longer command a majority of the court. Maybe the trend away from being so protective of juveniles started in  State v. Morgan, 2017-Ohio-7565, when a majority applied a criminal, rather than a civil, plain error standard in a delinquency proceeding.  Or maybe it was with the abrupt reversal in State v. Aalim. (See, Aalim I,  2016-Ohio-8278, Aalim II,  2017-Ohio-2956; ) But the fact seems to be that the court, except for the Chief, (although we haven’t heard much from Justices Stewart or Donnelly on this topic. Neither uttered a word in this argument) does not seem as sympathetic to juvenile offenders as it did when Justices Lanzinger, Pfeifer and O’Neill were on the court.

While the defense insists this case is governed by Hand, I think a majority will find it to be closer to the disability requirement in  Carnes, and allow the juvenile adjudication to serve as the basis of an element of failure to register as an adult, since the adjudication just serves as the basis of the duty to register, not as a penalty enhancement  Carnes was a 6-1 decision with only the Chief dissenting. Even though there were 3 appellate subs in that case, for Justices Kennedy, Fischer and DeWine, I think the vote would have been the same with no recusals. And it may be worth noting that the briefing in this case was ordered held until a decision in Carnes.

To Student Contributor Maggie Pollitt

I think the Court will rule in favor of Buttery in this case, though it’s difficult to tell given the quiet bench throughout both arguments.

Counsel for Buttery put the Court at ease when, right out of the gate, she explained that siding with Buttery would not remove the legislature’s ability to impose a requirement to register on a juvenile offender. Counsel explained that Buttery’s position requires that a failure to register charge remain within the context of juvenile court, even after the offender reaches adult status.

I also think that precedent favors Buttery’s argument. Apprendi and Hand both demonstrate courts’ interest in protecting juveniles from the long-term consequences of their childhood mistakes. In fact, Justice DeWine appeared to be the only justice interested in challenging Buttery’s claim that the charge of a failure to register, based on a juvenile adjudication, violates due process because the juvenile adjudication could never go before a jury.

Furthermore, I think that the State’s argument was ineffective, though Chief Justice O’Conner seemed to favor the State by pointing out that a juvenile offender may be relieved of his requirement to register. Judge Gallagher seemed unconvinced that Buttery’s proceedings satisfied due process, a perspective that Buttery’s counsel jumped on during rebuttal. Overall, the State had little to offer in the way of policy concerns, and the Court seemed indifferent to the argument.

Therefore, I think policy concerns and precedent will rule here and that the Court will find for Buttery.