On May 21, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Buttery, 2020-Ohio-2998. In a 6-1 opinion written by Justice Kennedy, in which Judge Eileen A. Gallagher sat for Justice Fischer, Chief Justice O’Connor concurred in judgment only, with an opinion, and Justice Donnelly dissented, the Court held that a juvenile adjudication can constitutionally satisfy the elements of an adult failure to register conviction. The case was argued August 6, 2019.

Case Background

In 2011, then-fourteen-year-old appellant Robert Buttery was adjudicated delinquent for two counts of what would constitute fourth-degree-felony gross sexual imposition if committed by an adult. Because the charges were delinquency offenses, Buttery was not afforded a jury trial. After a hearing Buttery was classified as a juvenile-offender registrant and Tier I sex offender, which required registration, address-change notification, and verification obligations for ten years. Buttery received notice of his duty to register and both he and a guardian signed a form acknowledging these responsibilities.

In November of 2015, when Buttery was 19, he was indicted for failing to register with the Hamilton County Sheriff’s office in violation of R.C. 2950.04. According to the indictment, the duty to register arose as a result of the juvenile adjudication of delinquency for gross sexual imposition. This failure-to-register charge was a fourth-degree felony. Buttery moved to dismiss the indictment claiming that he did not have a duty to register due to various errors in the juvenile court proceedings, which he argued rendered his sex-offender classification void. The trial court denied the motion. Buttery then entered a no-contest plea. He was found guilty and sentenced to three years of community control, with 18 months in prison if that were violated. Buttery appealed.

On appeal, Buttery argued that juvenile adjudications cannot satisfy elements of an offense committed as an adult. He additionally argued, which he did not below, that the failure to register conviction violated his constitutional due process rights. In a split decision, the First District Court of Appeals affirmed the trial court’s decision, finding that the juvenile adjudication was an element of the crime of failing to register, not a penalty-enhancing element.  

Read the oral argument preview here and the analysis of the argument here.

Key Statutes and Precedent

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

R.C. 2152.83(B) (After a juvenile has been found delinquent for committing a sexually oriented offense, a court may determine whether to classify the juvenile as a juvenile-offender registrant.) 

R.C. 2950.02 (The General Assembly gives its reasons for requiring juveniles to register, including public safety and public scrutiny of the criminal, juvenile, and mental health systems.)

R.C. 2950.03(A) (Notice of duty to register and periodically verify information)

Jones v. United States, 526 U.S. 227 (1999) (A prior conviction can enlarge the possible penalty for an offense because the prior conviction must have been established through procedures that satisfy fair notice, reasonable doubt, and jury trial guarantees.)

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.)

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.)

In re I.A., 2014-Ohio-3155 (Once a juvenile is adjudicated delinquent for a sexually oriented offense, courts have the discretion to classify the juvenile as a juvenile-offender registrant. Courts consider numerous statutory factors when making this determination, including the nature of the crime, information about the victim, and information about the offender.)

State v. Hand, 2016-Ohio-5504 (Juvenile adjudications, whether or not counseled, cannot 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. The juvenile-offender registrant has multiple opportunities to petition to have this registration requirement lifted or reduced.)

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. The juvenile adjudication did not enhance a sentence but was an element of the crime and therefore permissible.)

Buttery’s Proposition of Law Accepted for Review

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).

Does the Court adopt Buttery’s Proposition of Law?

Not in this context.

Merit Decision

Analysis

Forfeited Argument

Buttery never raised any constitutional issues at the trial court level, and only raised the due process argument for the first time on appeal. The Court of Appeals did not address whether the issue was forfeited. The Supreme Court decides to exercise its discretion to review this forfeited constitutional challenge under the requisite plain error standard, but without getting into the whole plain-error-razz-ma-tazz because the Court finds no error by the trial court.

Buttery’s Argument

A juvenile adjudication cannot satisfy an element of an offense committed by an adult.  His conviction under R.C. 2950.04 is based on his adjudication of delinquency, and since that was not a jury adjudication it cannot provide the factual basis for his conviction as an adult. The broader implication of this argument is that no adult who was ordered in a juvenile proceeding to register as a sex offender could be charged with a failure-to-register violation under R.C. 2950.04.

The Apprendi, Alleyne, Hand Trio 

Apprendi and Alleyne are U.S. Supreme Court decisions.  Apprendi held that other than the fact of a prior conviction, using judicial fact-finding to enhance a sentence violates due process and jury trial rights. Alleyne held that that any fact that by law increases the penalty for a crime, a mandatory minimum in that case, is an element that must be submitted to a jury and proven beyond a reasonable doubt.

Hand was a Supreme Court of Ohio case that dealt with a sentence enhancement that did not involve judicial fact-finding. The issue in Hand was whether a juvenile adjudication was a prior conviction for purposes of sentencing enhancement. The Court held that treating a juvenile adjudication as an adult conviction ran afoul of Apprendi.  The majority points out that the Hand court recognized its view was not the majority view, nationally. 

Not Like Hand, But More Like Carnes

As in Carnes, the Court declines to extend Hand in this case as well and finds that this case and Carnes share key elements.

Carnes dealt with R.C. 2923.13(A)(2) which makes it illegal for a person to possess a firearm under certain circumstances.  The circumstance relevant in Carnes was the firearm prohibition for a child adjudicated a delinquent for the commission of an offense which would be a felony of violence if committed by an adult. Carnes fell into that category. Nineteen years after his juvenile adjudication Carnes was charged with possessing a firearm while under a disability. Carnes tried to make the same arguments in this context that Hand had made about his juvenile adjudication in his case, but the Court declined to extend Hand, holding that although a prior juvenile adjudication was an element of the weapons-under-disability statute offense, that statute was not unconstitutional, despite the fact that an element of a crime is more consequential than a penalty enhancement.  

Unlike the statute in Hand, which had converted a juvenile adjudication into a conviction without the protections of the jury process afforded to adults, the statute in Carnes did not equate a juvenile adjudication with an adult conviction. Rather, it was one of several policy choices about dangerousness made by the legislature, preventing certain categories of persons from possessing a firearm. In this context it was the existence of the disability, not its reliability, that was at issue. Just being adjudicated delinquent for an offense of violence was deemed enough of a risk to public safety in this context.

Violation of a Court Order

In both Hand and Carnes, the juvenile adjudication led to a consequence unrelated to that juvenile adjudication- a sentence enhancement in Hand and making it illegal to possess a firearm in Carnes. Here, though, the delinquency adjudication is not at issue in that way. Buttery is not being punished because of a prior juvenile adjudication.  He is being punished because he violated a court order to register as a sex offender.

The majority points out that the juvenile-offender registrant classification is not mandatory and requires a hearing in which numerous statutory factors are to be considered.

So, the elements of the crime under R.C. 2950.04 are the duty to register and the violation of that duty. The Court has already held, in In Re D.S. that a duty to register that extends into adulthood does not violate due process. Plus, the duty to register for Buttery involved a hearing to determine whether registration was appropriate. So, and this is key, unlike in Hand, Buttery did not face additional consequences because of his initial juvenile adjudication; rather he faces punishment for violation a court order. Also, unlike Hand, Buttery had notice of his duty to register, while Hand did not know that a juvenile adjudication could serve as a sentence-enhancement for a later offense.

R.C. 2950.04 does not treat a juvenile adjudication as an adult conviction, nor does it provide an additional penalty based on a prior juvenile adjudication. It simply punishes the defendant for violating the court’s order to comply with the registration requirements.

The Roads Not Taken

In Carnes, there was a statutory process to seek relief from the disability in that case. Yet, Carnes did not pursue that avenue. Here, too, there is a path for an offender to have the duty to register modified or terminated. Like Carnes in that context, in this context Buttery did not pursue the chance to have his duty to register lowered or ended altogether.

Existence Versus Reliability

To the majority, this case and Carnes have one more significant thing in common.  In neither was the reliability of the juvenile adjudication at issue, as it was in Hand. Rather, in both, it is the fact of the juvenile adjudication that is consequential. Both represent policy choices of the General Assembly—in Carnes, deciding people with juvenile adjudications for felony offenses present a danger to society, and in this situation, deciding the imposition of registration sanctions in sex offense cases protects the public. The legislature’s reasoning for the latter are set forth in R.C. 2950.02. R.C. 2950.04 enforces that policy choice.

One Difference From Carnes

Buttery makes one last argument, different from what happened to Carnes. In Carnes, the violation of the weapons-under-disability statute was a third-degree felony, regardless of the predicate conduct.  But here, the degree of the offense for a violation of the duty to register under R.C. 2950.04 is automatically used to determine the level of the failure-to-register offense. For Buttery, because his delinquency adjudication was based on what would have been a fourth-degree felony if committed by an adult, his failure to register is also a fourth-degree felony. So, Buttery argues that his juvenile adjudication does determine the penalty for failure to register. The majority rejects this argument as well, again holding this juvenile adjudication is not a sentence enhancement.  The statutory scheme involved here does not increase a sentence beyond a statutory maximum or mandatory minimum.

Bottom Line Here

R.C. 2950.04 does not equate a juvenile adjudication with a criminal conviction. As with the weapons-under-disability statute in Carnes, it is the existence of the duty to register, not the reliability of the underlying adjudication that is at issue in the statute. Juveniles have notice of their duty to register and many chances to eliminate that duty through a judicial process, thus providing layers of due process not available in Hand.

Chief Justice O’Connor’s Position

Chief Justice O’Connor concurred in judgment only and wrote separately because she disagrees with the majority that this case shares key elements with Carnes. She would find this case wholly distinguishable from both Hand and Carnes.

O’Connor notes that the Court has already held in In Re D.S. that the duty to register may continue past the age of 18. Buttery had an obligation to register past the age of 18, and he was convicted for failure to comply with that obligation which applied to him as an adult, not one which reached back to use a prior juvenile adjudication either to enhance an adult sentence or to satisfy an element of a crime committed as an adult.

O’Connor views Buttery’s argument as a challenge to his offender classification, but notes that he failed to challenge that classification when he had the chances to do so.

Justice Donnelly’s Dissent

Justice Donnelly dissents because he does not believe Buttery received due process. He lists a number of aspects of the case that he finds troubling.

• Buttery failed to raise a due-process argument in the trial court, thus forfeiting it. The First District need not have addressed it.
• Buttery never asked the juvenile court to relieve him of his statutory duty to register.
• Buttery has other appeals pending and the issues in those appeals are hindering the Supreme Court from addressing the entire case.
• The transcript of the adjudication hearing is not part of the record, so it is impossible to know if Buttery was made fully aware of the collateral consequences of his admissions. Donnelly would remand the case to the appeals court to obtain and review that transcript.

But Donnelly’s chief concern is over Buttery’s due process rights. He notes that Buttery was adjudicated delinquent in a civil system designed to rehabilitate offenders, not punish them, but that the registration requirements of R.C. 2950.04 are punitive.

“Our juvenile-court system is designed to keep juvenile proceedings out of the public eye to prevent a lifetime of stigma for acts committed as a juvenile. Buttery has not committed any offense as an adult similar to the acts at issue in his juvenile proceeding. But the successful efforts he undertook to rehabilitate himself have now been undermined: his acts are now in the public eye,” wrote Donnelly.

Donnelly considers this case worse than Hand because Buttery’s juvenile adjudication wasn’t used to increase the severity of his sentence for an act committed as an adult, it was the “sine qua non of his conviction for failure to register.” Also fundamentally unfair is the fact that his punishment is based on the degree of the felony Buttery would have been charged with had he committed the acts as an adult, even though he wasn’t convicted of a felony and had no right to a jury trial.

Case Disposition

The judgment of the court of appeals affirming the judgment of the trial court is affirmed.

Trial Court Judge (Affirmed)

Hamilton County Court of Common Pleas Judge Megan Shanahan

First District Panel (Majority Affirmed)

Opinion Author Judge Dennis Deters, joined by Judge Russell Mock

Dissent by Judge Penelope Cunningham

Concluding Observations

I wrote this after argument, correctly, it seems:

“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.

“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.”

I think the high-water mark for protections for juvenile offenders is either waning or has passed, although it will be interesting to see what the Court decides in the recently argued M.H. case.

I found the majority decision pretty dense, and at times difficult reading. The Chief’s position is certainly more straightforward (the Chief was the lone dissenter in Carnes). As for Justice Donnelly, what he wrote about stigmatizing juveniles for life for youthful mistakes sounds exactly like something now-retired Justice Pfeifer would have written. In fact, here is what Pfeifer wrote in In Re CP, 2012-Ohio-1446, striking down automatic lifetime sex offender requirements for certain juvenile offenders: 

“Before a juvenile can even begin his adult life, before he has a chance to live on his own, the world will know of his offense. He will never have a chance to establish a good character in the community. He will be hampered in his education, in his relationships, and in his work life. His potential will be squelched before it has a chance to show itself.”

One thing is odd here though—and that is why neither Buttery nor Carnes availed themselves of the avenues of relief from their respective disabilities.