State v. Harding, 2012 Ohio 4444

Harding pled no contest to unlawful sexual conduct with a minor (14) under RC 2907.04; age difference was less than four years, making the charge a first-degree misdemeanor.
At a plea hearing (Oct. 3, 2011), the court advised it would conduct a hearing on whether the activity was consensual and that a lack of consent could lead to Tier I classification.
A Tier I designation under the Adam Walsh Act would require the offender to comply with sex-offender duties and penalties.
Harding moved (Nov. 7, 2011) to be sentenced without a hearing, arguing lack of consent was not an element and that a jury must determine any fact increasing punishment, referencing Williams.
The trial court rejected this argument and held the consent hearing (Jan. 18, 2012), ultimately designating Harding as a Tier I offender and sentencing him, stayed pending appeal.
The appellate court later reversed, holding that, where a jury demand exists and has not been waived, a jury must determine the lack of consent prior to punitive classifications under the Adam Walsh Act.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a jury, not the trial court, must find lack of consent for Tier I designation.	Harding argued lack of consent is not an element and the jury must decide it.	Harding argued Adam Walsh Act facts increasing punishment are punitive and require jury finding.	Yes; the jury must decide lack of consent if a jury demand exists and was not effectively withdrawn.

State v. Williams, 129 Ohio St.3d 344 (2011) (Adam Walsh Act punitive; jury must determine punitive factors)
Blakely v. Washington, 542 U.S. 296 (2004) (facts increasing penalties must be found by jury beyond reasonable doubt)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (penalty-enhancing facts subject to jury factfinding)
Ring v. Arizona, 536 U.S. 584 (2002) (Sixth Amendment requires jury finding for aggravating facts)
Oregon v. Ice, 555 U.S. 160 (2009) (jury-trial guarantees apply to certain sentencing facts)