In Re Von
Facts and Procedural History
{¶ 2} Von moved to terminate his duty to comply with sex offender registration laws pursuant to
{¶ 3} The state opposed the motion to terminate, arguing that
{¶ 4} While the trial court was considering Von‘s motion to terminate, Von sought a preliminary injunction to stay the enforcement of a change in his classification from a “Tier One Sexually Oriented Offender” to a “Tier Three” offendеr. Von attached notices indicating that he had been adjudicated a “(Pre AWA) Sexually Oriented Offender” but was later adjudicated a “(Pre AWA) SEXUAL PREDATOR.” (Capitalization sic.)
{¶ 5} The trial court issued the following order: “Petitioner is entitled tо a preliminary injunction until this Court issues a determination of the merits of Petitioner‘s challenge under
{¶ 6} The trial court then denied the motion to terminate Von‘s duty to comply with sex offender registration laws because at the time of his convictions, Megan‘s Law was in effect in Ohio as codified in
{¶ 7} In a split decision, the appellate court reversed. In the lead opinion, Judge Wright concluded that
{¶ 8} Judge Cannon authored a separate opinion conсurring in judgment only. He explained that Von is subject to Megan‘s Law, not the Adam Walsh Act, and therefore
{¶ 9} Judge Grendell dissented and expressed a third view that the record contained no evidence that Von had ever been classified as a Tier I sex offender; based on Williams, she explained, it would be unconstitutional to classify him as a Tier I sex offender, and she therefore concluded that
{¶ 10} We accepted the state‘s discretionary appeal from the appellate court on two propositions of law:
The registration termination procedure delineated in
R.C. 2950.15 may not be retroactively applied to sex offenders who commit their crimes before January 1, 2008 and who are convicted and sentenced before that date.A statute which has not been found unconstitutionаl is not subject to the judicial remedy of severance.
Positions of the Parties
{¶ 11} The state maintains that the appellate court erred in holding that sex offenders classified under Megan‘s Law may avail themselves of the privilege legislatively granted to Adam Walsh Act offenders to terminate their registration obligations. The state urges that only Tier I sex offenders are eligible offenders for purposes of
{¶ 12} Von did not file a merit brief.
Issue
{¶ 13} The issue here is whether the statutory procedure to terminate the obligation for sex offenders to comply with registration requirements applies to offenders who committed their offenses before the statute‘s effective date. More simply stated, do the statutory procedures to relieve an Adam Walsh Act offender from the obligation to report apply to a Megan‘s Law offendеr? Plainly, they do not.
Law and Analysis
Background
{¶ 14} In 1996, the General Assembly enacted Megan‘s Law, which revised
{¶ 15} Then, in 2007, the General Assembly enacted the Adam Walsh Act, which “repealed Megan‘s Law, effective January 1, 2008, and replaced it with new standards for sex-offender classificаtion and registration pursuant to the federal Adam Walsh Child Protection and Safety Act,
{¶ 16} In Williams, this court considered whether the Adam Walsh Act could constitutionally be retroactively applied to an offender who had committed a sex offense prior to its enactment. We concluded that the Adam Walsh Act, part of which was expressly made retroactive, is punitive, and “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 ¶ 16 and at the syllabus.
{¶ 17} Subsequently, we clarified that only persons who commit their underlying offense on or after the effective date of the Adam Walsh Act can be constitutionally subjected to its requirements. In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983 N.E.2d 350.
R.C. 2950.15
{¶ 18}
(A) As used in this section * * *, “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 cоmmitted, and is a tier I sex offender/child-victim offender * * *.
(B) Pursuant to this section, an eligible offender may make a motion to * * * the court of common pleas * * * requesting that the court terminate the eligible offender‘s duty to comply with sections
2950.04 ,2950.041 ,2950.05 , and2950.06 of the Revised Code.
(Emphasis added.)
{¶ 19} While
{¶ 20} The record contains no evidence that Von has been classified as a Tier I sex offender or child-victim offender. To the contrary, the documentation attached to his motion for a preliminary injunction demonstrates that he has been previously classified as a Megan‘s Law offender, not an Adam Walsh Act offender. Therefore, he is not a Tier I sex offender.
{¶ 21} As established by this court in Williams and In re Bruce S., the tier classification system of the Adam Walsh Act cannot be constitutionally applied to
{¶ 22} The claim that the remedy of severance would permit Megan‘s Law offenders to be reclassified as Adam Wаlsh Act Tier I offenders for the purpose of having their Megan‘s Law duties terminated is inconsistent with Williams, In re Bruce S., and the plain language of
{¶ 23} Accordingly, Von and other sex offenders who committed their оffenses prior to January 1, 2008, the effective date of the Adam Walsh Act, cannot be constitutionally classified pursuant to it and therefore cannot be “eligible offenders” as defined by
Conclusion
{¶ 24} The registration termination procedure delineated in
{¶ 25} However, given the confusion regarding Von‘s current status, we affirm the judgment of the appellate court to the extent that it remanded this matter for a determination of his sex offender clаssification pursuant to Megan‘s Law. We remand the cause to the trial court with instructions to determine the appropriate classification for Von in accordance with Megan‘s Law.
Judgment affirmed in part and reversed in part, and cause remanded.
O‘Connor, C.J., and Pfeifer, Kennedy, and French, JJ., concur.
Lanzinger, J., concurs in judgment only.
O‘Neill, J., dissents.