IN RE: AARON K. VON
CASE NO. 2013-T-0085
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
March 16, 2015
[Cite as In re Von, 2015-Ohio-943.]
THOMAS R. WRIGHT, J.
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2012-CV 02284. Judgment: Reversed and remanded.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Appellee).
THOMAS R. WRIGHT, J.
{¶1} This accelerated-calendar appeal is from a final judgment of the Trumbull County Court of Common Pleas, overruling appellant, Aaron K. Von’s, application to terminate his registration requirements under Ohio’s sexually-oriented offender law. Appellant claims that, as a “Tier I” offender, he is eligible for the requested relief as
{¶2} On January 29, 1997, appellant was convicted in Colorado of one count of sexual assault of a child, a fourth-degree felony, and one count of sexual assault, a first degree misdemeanor. The Colorado trial court sentenced him to a prison term of one
{¶3} In February 2005, appellant moved to Taos, New Mexico, where he lived and worked for approximately six years. In August 2011, he moved to his present home in Trumbull County, Ohio. At each place appellant resided, he continued to periodically register as a sexual offender with the county sheriff.
{¶4} After living in Trumbull County for 14 months, appellant filed an application to terminate his ongoing registration requirements. This application was submitted pursuant to
{¶5} Although not stated in his application to terminate, appellant maintained in subsequent submissions to the trial court that he qualifies as a Tier I sexual offender under the current Ohio statutory scheme. While his application was pending, he also moved the trial court for a preliminary injunction to stop the state from taking any steps to change his sexual offender classification from Tier I to Tier III. The trial cоurt granted this motion, expressly holding that appellant would suffer irreparable harm if his classification were modified prior to the issuance of a final ruling on his application to terminate.
{¶6} In answering the application to terminate, the state asserted that
{¶7} After appellant submitted a reply brief on the “retroactivity” issue, the trial court issued its decision denying his application to terminate his registration obligations. As the basis for its judgment, the court held that, since no procedure for the termination of a registration order had existed prior to 2008, appellant was not eligible for any relief under
{¶8} Appellant raises a single assignment of error for review:
{¶9} “The trial court erred when it found that
{¶10} Pursuant to
{¶11} As noted above, in contending that
{¶12} In Williams, the primary question before the Ohio Supreme Court was the general effect of the Adam Walsh Act upon the application of sexual offender laws: i.e., did the new Act change the nature of the statutory scheme from purely remedial to punitive? In answering this query in the affirmative, the Supreme Court did not focus on any particular statute. Furthermore, the Court’s ultimate decision was set forth in broad terms: “2007 Am.Sub.S.B. No 10 [the Adam Walsh Act], as applied to defendants who committed sex offenses prior to its enactment, violates Sеction 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.” Williams, 129 Ohio St.3d at the syllabus.
{¶13} Nevertheless, in reaching this conclusion, the Supreme Court specifically limited its analysis to four alterations in the statutory scheme: (1) the new classification system for sexual offenders, including Tier I, Tier II, and Tier III; (2) the new procedure for determining an offender’s classification; (3) the additional reporting and registration requirements; and (4) the increased duration of those requirements. Id. at ¶7, 16-19. As to the latter two changes, the Supreme Court emphasized that retroactive application was impermissiblе because the Adam Walsh Act had the effect of placing new burdens or obligations upon defendants in regard to sexual offenses committed in the past. Id. at ¶19.
{¶15} Notwithstanding the broad language of the Williams syllabus, the “retroactivity” analysis in the Williams opinion only addressed those parts of the Adam Walsh Act that were punitive in nature. Since the provisions of
{¶16} “It is well-settled that statutes are presumed to apply prospectively unless expressly declared to be retroactive.
{¶17} “As noted in Van Fossen and LaSalle, we have distilled these principles into a two-part test for evaluating whether statutes may be applied retroactively. First, the reviewing court must determine as a threshold matter whether the statute is expressly made retroactive. LaSalle, 96 Ohio St.3d at 181, * * *, citing Van Fossen, 36
{¶18} In determining the General Assembly’s intent under the first prong of the retroactivity test, the Ohio Supreme Court has focused upon the precise language used in the disputed statute. See Id. at ¶11-13; Bielat v. Bielat, 87 Ohio St.3d 350, 353-354 (2000). In relation to
{¶19} “(A) As used in this section and
2950.16 of the Revised Code , ‘eligible offender’ means a person who is convicted of, pleads guilty to, was convicted of, or pleaded guilty to a sexually oriented offense or child-victim oriented offense, regardless of when the offense was committed, and is a Tier I sex offender/child-victim offender or a child who is or was adjudicated a delinquent child for committing a sexually orientеd offense or child-victim oriented offense, regardless of when the offense was committed, and is a public registry-qualified juvenile offender registrant.” (Emphasis added.)
{¶20} In Williams, 2011-Ohio-3374, at ¶8, the Supreme Court concluded that the General Assembly intended for the new registration requirements in the Adam Walsh Act to be applied retroactively. In support of the point, the opinion noted: “
{¶21} In stating which Tier I offenders are eligible to move for the termination of
{¶22} “In Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, * * *, ¶37, we stated that ‘(i)t is well established that a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right. Van Fossen, 36 Ohio St.3d at 107, * * *. Remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.’ See [Bielat, 87 Ohio St.3d at 352-353], quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51, * * * (‘The retroactivity clause nullifies those new laws that “reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time (the statute becomes effective)”’ * * *).” Williams, at ¶9.
{¶23} As stated above,
{¶24} “But the creation of a new right – even a new substantive right – is not, by itself, enough to support a claim of unconstitutional retroactivity. We have held that a claim that a statute is substantive and hence unconstitutionally retroactive, ‘cannot be based solely upon evidence that a statute retrospectively created a new right, but must also include a showing of some impairment, burden, deprivation, or new obligation accompanying that new right.’ Bielat, 87 Ohio St.3d 350, * * *, paragraph two of the syllabus. Thе court must inquire ‘whether the creation of rights in one party reciprocally impaired a right of the party challenging the retroactive law. In other words, substantive, retroactive legislation that unconstitutionally creates a new right also impairs a vested right or creates some new obligation or burden as well.’ Id. at 359.” State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, ¶46.
{¶25} In this case, the state is the party contesting the retroactive application of
{¶26} Furthermore, even though many provisions of the Adam Walsh Act were declared unconstitutional as applied to offenders convicted of sex crimes that occurred prior to January 1, 2008,
{¶27} “‘(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of wоrds or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?’” State ex rel. Whitehead v. Sandusky Cty. Bd. of Commissioners, 133 Ohio St.3d 561, 2012-Ohio-4873, ¶28, quoting Geiger v. Geiger, 117 Ohio St. 451, 466 (1927).
{¶28} As to the first two prongs of the “severance” test, this court reiterates that
{¶29} In enacting
{¶30} In claiming that the foregoing conclusion has the effect of overturning the Williams decision, the dissenting opinion does not address the fact that
{¶32} As previously noted, appellant initially raised the “re-classification” issue in his motion for a preliminary injunction, which was filed approximately forty days after the submission of his application to terminate. In the motion, appellant moved the trial court to enjoin the State of Ohio from re-classifying him from a Tier I offender to a Tier III offender. On the same date the motion was submitted, the trial court issued a judgment granting a preliminary injunction. Concerning appellant’s status, the judgmеnt ordered that he was to remain a “Tier I” offender until further order of the court. The bottom of the judgment also contained a notation that the state did not oppose appellant staying a “Tier I” offender while the case remained pending.
{¶34} Notwithstanding the fact that the trial court has not rendered a final ruling concerning appellant’s status, the dissenting opinion addresses the merits of the point and concludes that appellant cannot invoke
{¶35} In Bodyke, 2010-Ohio-2424, the Supreme Court concluded that if a sexual offender has previously been classified under the classification system that was in effect prior to January 1, 2008, he could not be re-classified under the new “three-tier” system of the Adam Walsh Act. In reaching this conclusion, the Bodyke court did not make any reference to the procedure for terminating a Tier I offender’s registration requirements under
{¶36} Neither of the foregoing two concerns exists if, as part of the procedure for deciding a motion/application to terminate under
{¶37} In reviewing the materials accompanying appellant’s motion for a preliminary injunction, the trial court found the materials sufficient to warrant an interim order that appellant would be considered a Tier I sexual offender. Furthermore, the trial court never overruled the interim order. Thus, in light of our holding on the retroactivity issue, this case must be remanded so that the trial court can conduct a full hearing on the re-classification issue, as raised in the motion for a preliminary injunction, and then
{¶38} Pursuant to the foregoing, the judgment of the Trumbull County Court of Common Pleas is reversed, and the case is hereby remanded for further proceedings consistent with this opinion.
TIMOTHY P. CANNON, P.J., concurs in judgment only with a Concurring Opinion,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
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TIMOTHY P. CANNON, P.J., concurring in judgment only.
{¶39} I concur this matter should be remanded to the trial court for clarification of appellant’s classification status. Appellant, by virtue of his incarceration in 1997, is subject to the requirements of Ohio’s Megan’s Law. Pursuant to Megan’s Law, his stаtus as an offender, for which he was required to register for life due to his Colorado conviction, automatically classified him as a sexual predator. There is, however, significant confusion between the parties, as well as between the lead opinion and dissent, as to the status of this case at the trial court level. This confusion, in my view, may stem from the preliminary injunction issued by the trial court; it is probable the trial court only intended to adopt a Tier I classification for appellant until it issued a determination on the merits of appellant’s application. In the preliminary injunctiоn order
{¶40} In the trial court entry that disposed of appellant’s motion, it does not mention whether appellant’s Tier I classification had been terminated. I agree with the dissent that appellant’s Tier I classification should be terminated; appellant was subject to Megan’s Law, as noted by the trial court, and
{¶41} To further complicate matters, there is some confusion regarding whether appellant has been classified as a “sexually oriented offender” or as a “sexual predator” under Megan’s law. While the trial court resolved that appellant was subject to Megan’s Law, it did not establish what the classification under that law should be.
{¶42} I concur with the decision to remand this case to allow the trial court to clarify the termination of appellant’s Tier I status and, hopefully, to resolve what appellant’s status is and should be under Megan’s law.
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DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶43} In the present case, Aaron K. Von filed an Application for Termination of Duty to Comply with Sex Registration Laws, pursuant to
{¶44}
{¶45} Under the statute, “an eligible offender may make a motion to the court of common pleas * * * of the county in which the eligible offender resides requesting that the court tеrminate the eligible offender’s duty” to register as a sexual offender.
{¶46} In order to be an eligible offender, Von must be classified a tier I sex offender/child-victim offender. The tier I classification was created in 2007 by the above-mentioned Adam Walsh Act. The passage of the Adam Walsh Act abolishеd “[t]he former categories of sexually oriented offender, habitual sex offender, and sexual predator.” State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 21. As noted above, the Ohio Supreme Court has held that the provisions of the Adam Walsh Act cannot be applied to offenders who committed their offenses prior to its enactment. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶ 20.
{¶47} In the present case, Von was convicted of sex offenses in 1997, long before the enactment of the Adam Walsh Act. Not only would it be unconstitutional to classify Von under the Adam Walsh Act, there is no evidence that Von has ever been classified as a tier I sex offender. The evidencе before this court, consisting of Notices of Registration Duties of Sexually Oriented Offender Or Child-Victim Offender issued between August 2011 and November 2012, variously classifies Von as “(Pre AWA) Sexually Oriented Offender” or “(Pre AWA) Sexual Predator.”1 Currently, Von is identified on the Ohio Attorney General’s online registry of sex offenders as “(Pre AWA) Sexually Oriented Offender.” http://icrimewatch.net/offenderdetails.php?OfndrID=1550971&AgencyID=55149 (accessed March 4, 2015).
{¶48} The majority’s analysis as to whether
{¶49} The majority’s position that Von could be reclassified as a tier I sex offender “solely for the purposes of deciding the merits of a motion to terminate registration requirements” is simply incredible. Supra at ¶ 36. The Ohio Supreme Court has stated unequivocally: “2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.” Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at the syllabus.
{¶50} Alternatively, to be an “eligible offender” under
{¶51} Neither the Williams decision nor the Bodyke decision countenances the retroactive application of the Adam Walsh Act on an “as applied” basis. Nothing in the Adam Walsh Act provides for the reclassification of sex offenders by trial court judges. Accordingly, the trial court’s judgment must be affirmed and I respectfully dissent.