State v. Herzberger, 2013 Ohio 3664

Herzberger pleaded guilty to three counts of rape as part of a plea deal; parties agreed to nine years’ imprisonment.
At sentencing, the court conducted a Megan’s Law classification hearing and classified Herzberger as a sexual predator.
Herzberger appealed challenging the predator classification, asserting he should be a sexually oriented offender.
The trial court considered the statutory factors and found by clear and convincing evidence that Herzberger is likely to commit future sexually oriented offenses.
The Ninth District affirmed, holding competent, credible evidence supported the predator finding and the appeal was overruled.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in classifying Herzberger as a sexual predator.	Herzberger argues he is not a predator due to health, age, and lack of current victims.	State contends the court properly classified him as a predator based on statutory factors and evidence.	Predator classification upheld; evidence supports likelihood of future offenses.

State v. Troutman, 2006-Ohio-6066 (9th Dist. Medina No. 06CA0012-M, 2006-Ohio-6066) (clear-and-convincing standard governs predator determinations)
State v. Williams, supra (Ohio St.3d 513, 2000) (clear and convincing standard for predator determinations)
State v. Eppinger, 91 Ohio St.3d 158 (2001) (defined intermediate standard for clear and convincing evidence)
State v. Unrue, 2002-Ohio-7002 (9th Dist. Summit No. 21105, 2002-Ohio-7002) (appellate review of predator classification)
Cross v. Ledford, 161 Ohio St. 469 (1954) (established standard for evidentiary sufficiency and review)