Acheson v. StateAcheson v. State
Rachel A. Hutzel, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for respondent-appellee
O P I N I O N
HENDRICKSON, J.
{¶1} Petitioner-appellant, Scott Acheson, appeals a decision of the Warren County Court of Common Pleas dismissing a petition challenging his reclassification as a Tier III sex offender under the Adam Walsh Act. For the reasons that follow, we reverse and remand.
{¶2} In July 2005, appellant was convicted of two counts of rape in the Butler County Court of Common Pleas and adjudicated a sexually oriented offender. This classification required appellant to register with the county sheriff annually for ten years.
In January 2008, following the passage of Ohio‘s Adam Walsh Act, appellant received notice that he had been reclassified as a Tier III sex offender.1 The reclassification imposed a lifetime registration requirement and subjected appellant to community notification.
{¶3} Appellant is currently incarcerated in the Lebanon Correctional Institution in Warren County, Ohio. In March 2008, appellant filed a petition in the Warren County Court of Common Pleas challenging his reclassification and questioning the constitutionality of the Adam Walsh Act. Following a hearing, a magistrate denied the petition. The magistrate determined that the court lacked jurisdiction to consider appellant‘s argument contesting community notification. The trial court adopted the magistrate‘s decision after appellant failed to file objections. Appellant timely appeals, raising six assignments of error.
{¶4} Assignment of Error No. 1:
{¶5} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PETITIONER-APPELLANT WHEN IT DETERMINED THAT APPLYING THE ADAM WALSH ACT TO PETITIONER-APPELLANT DID NOT VIOLATE THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION.”
{¶6} Assignment of Error No. 2:
{¶7} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PETITIONER-APPELLANT WHEN IT DETERMINED THAT APPLYING THE ADAM WALSH ACT TO PETITIONER-APPELLANT DID NOT VIOLATE THE PROBATION ON RETROACTIVE LAWS IN ARTICLE II, SECTION 28 OF THE OHIO STATE
{¶8} Assignment of Error No. 3:
{¶9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PETITIONER-APPELLANT WHEN IT DETERMINED THAT APPLYING THE ADAM WALSH ACT TO PETITIONER-APPELLANT DID NOT VIOLATE THE SEPARATIONS [sic] OF POWERS DOCTRINE IN THE OHIO CONSTITUTION.”
{¶10} Assignment of Error No. 4:
{¶11} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PETITIONER-APPELLANT WHEN IT HELD THAT APPLYING THE ADAM WALSH ACT TO THE PETITIONER-APPELLANT DID NOT VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE OHIO OR THE UNITED STATES CONSTITUTION.”
{¶12} Assignment of Error No. 5:
{¶13} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PETITIONER-APPELLANT WHEN IT HELD THAT THE APPLYING OF THE ADAM WALSH ACT TO PETITIONER-APPELLANT WHO HAD PREVIOUSLY BEEN SUBJECT TO THE 2003 VERSION OF MEGAN‘S LAW DID NOT VIOLATES [sic] DUE PROCESS AND DID NOT CONSTITUTES [sic] CRUEL AND UNUSUAL PUNISHMENT AS PROHIBITED BY THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 9, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶14} Assignment of Error No. 6:
{¶15} “THE TRIAL COURT ERRED TO THE PREJUDICE OF PETITIONER-APPELLANT WHEN IT HELD THAT THE ADAM WALSH ACT APPLIED TO PETITIONER-APPELLANT AS HE HAD ENTERED A PLEA OF GUILTY/NO CONTEST
{¶16} In the instant appeal, appellant raises a multitude of constitutional challenges often lodged against the Adam Walsh Act. Because appellant failed to object to the magistrate‘s decision, we are limited to a plain error standard of review. Fender v. Miles, Brown App. No. CA2009-01-003, 2009-Ohio-6043, ¶27. This court, like other Ohio jurisdictions, has found that sexual offender classifications and their corresponding requirements are civil penalties. State v. Williams, Warren App. No. CA2008-02-029, 2008-Ohio-6195, ¶39-49. Accordingly, we must apply the civil plain error standard in reviewing the instant appeal.
{¶17} Civil plain error “is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, syllabus. We are mindful of this standard in addressing appellant‘s arguments.
{¶18} One of the claims advanced by appellant in his reclassification petition was that the community notification requirements of the Adam Walsh Act could not be applied to him. Appellant insisted that the exception contained in
{¶19}
{¶20} “The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”
{¶21}
{¶22}
{¶23} In the case at bar, the magistrate briefly reviewed
{¶24} On appeal, appellant does not contest the jurisdictional dismissal of his community notification claim by the trial court. However, we must raise jurisdictional issues sua sponte. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 87. See, also, Foster v. Wickliffe, 175 Ohio App.3d 526, 2007-Ohio-7132, ¶106 (Rice, P.J., dissenting) (stating, “Where * * * parties fail to raise a jurisdictional issue on appeal, an appellate court must raise it sua sponte“). In view of a recent decision issued by the Ohio Supreme Court, we find that the trial court‘s dismissal of appellant‘s community notification argument was improper.
{¶25} In State v. McConville, __ Ohio St.3d __, 2010-Ohio-958, the Ohio Supreme Court scrutinized the community notification provisions of
{¶26} The defendant in McConville pleaded guilty to rape and gross sexual imposition and was classified as a Tier III sex offender on a date after the Adam Walsh Act had already gone into effect. Following a hearing, the trial court removed the defendant‘s duty to comply with community notification requirements. The appellate court affirmed, and the Ohio Supreme Court accepted a discretionary appeal.
{¶27} After reviewing the applicable law, the high court noted that the plain language of
{¶28} Also of note, the McConville court declared that
{¶29} We highlight the following observation made by the McConville court, which is particularly relevant to the present appeal:
{¶30} “The
R.C. 2950.11(F)(2) community-notification issue may also arise in a reclassification context: if a sexual offender was not subject to community notification when his status was determined under pre-Senate Bill 10 legislation but is automatically reclassified under Senate Bill 10 into a status that does require community notification,R.C. 2950.11(F)(2) may be implicated. However, a reclassification situation of this type is not presented in this case and, accordingly, we express no opinion as to the operation ofR.C. 2950.11(F)(2) in this regard.” McConville at ¶4, fn. 1.
{¶31} This is precisely the scenario we are confronted with in the case at bar. Appellant was not subject to community notification when initially adjudicated a sexually oriented offender under the former
{¶32} As in appellant‘s case, an offender who is reclassified under the Adam Walsh Act may find himself subject to community notification requirements where he previously was not. Such circumstances mimic the imposition of community notification upon a newly-adjudicated sex offender. In line with the high court‘s reasoning in McConville and the language employed by
{¶33} In sum, we hold that a sex offender who is reclassified under the Adam Walsh Act and automatically becomes subject to community notification requirements as a result of his reclassification may seek removal of that sanction in accordance with the procedures outlined in
{¶34} In view of our analysis, we find that the trial court in the case at bar possessed jurisdiction to entertain appellant‘s claim that he was entitled to removal of community notification requirements under
{¶35} Due to our ruling that
{¶36} Before addressing appellant‘s assignments of error, we pause to clarify a recent decision promulgated by this court and cited above. In Roy v. State, Butler CA2009-02-067, 2009-Ohio-5808, this court addressed a trial court‘s decision dismissing a defendant‘s petition challenging his reclassification to a Tier III sex offender. The defendant had been convicted and initially adjudicated a sex offender in the Butler County Common Pleas Court in 1997. In March 2008, while incarcerated in Madison County, the defendant filed a petition challenging his reclassification with the sentencing court in Butler County. After surveying the law, this court concluded that the proper forum for a petition challenging reclassification was the common pleas court in the county of the petitioner‘s residence or temporary domicile, not the county in which the petitioner was sentenced or adjudicated a sex offender. Id. at ¶6.
{¶37} We recognize that Roy made no differentiation between challenges to reclassification and challenges to community notification requirements. This omission does not critically impact motions for removal of newly-imposed community notification requirements under
{¶38} As stated,
{¶39} We now turn to appellant‘s six assignments of error. Appellant challenges the Adam Walsh Act on a number of constitutional grounds. Specifically, appellant argues that the law violates the ex post fact clause, the prohibition against retroactive laws, the separation of powers doctrine, the double jeopardy clause, the due process clause, the prohibition against cruel and unusual punishment, and the right to contract.
{¶40} Each of appellant‘s constitutional objections has already been disposed of by this court. In State v. Williams, Warren App. No. CA2008-02-029, 2008-Ohio-6195, we ruled that Ohio‘s Adam Walsh Act does not violate, inter alia, the Double Jeopardy and Retroactivity Clauses of the Ohio Constitution or the separation of powers doctrine. Id. at ¶107-111, ¶22-36, and ¶95-102. In addition, we found that the act does not violate the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution. Id. at ¶37-75 and ¶107-111. We also ruled that the act does not infringe
{¶41} Having disposed of appellant‘s constitutional arguments, the first, second, third, fourth, fifth, and sixth assignments of error are overruled.
{¶42} Because the trial court erred in finding that it lacked jurisdiction to entertain appellant‘s community notification argument, we reverse the decision of the trial court and remand the matter for consideration of that issue.
{¶43} Reversed and remanded.
BRESSLER, P.J., concurs.
RINGLAND, J., concurs in part and dissents in part.
RINGLAND, J., concurring in part and dissenting in part.
{¶44} I respectfully dissent based upon my analysis in Sears v. State, Clermont App. No. CA2008-07-068, 2009-Ohio-3541, finding that the retroactive modification of judicially-determined sex offender classifications by the Adam Walsh Act violates the separation of powers doctrine. I concur with the majority‘s resolution of the remaining issues.