Naples v. StateNaples v. State
Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Respondent-Appellee).
O P I N I O N
DIANE V. GRENDELL, J.
{¶1} Petitioner-appellant, Michael J. Naples, appeals the Judgment Entry of the Trumbull County Court of Common Pleas, in which the trial court granted the Motion for Summary Judgment filed by respondent-appellee, the State of Ohio. The fundamental principles of the “separation of powers” doctrine as written by our forefathers in our United States Constitution is inviolate, and, therefore, mandates reversal of the decision
{¶2} On June 7, 2000, Naples pleaded guilty to two counts of Rape, in violation of
{¶3} On March 6, 2008, Naples filed a petition contesting his reclassification. The State subsequently filed a Motion for Summary Judgment. The trial court found that it was proper for the Attorney General to reclassify Naples as a Tier III sex offender and, as a result, granted summary judgment in favor of the State.
{¶4} Naples timely appeals and raises the following assignments of error:
{¶5} “[1.] The trial court erred in granting summary judgment to appellees. The retroactive application of Ohio‘s Adam Walsh Act violates the prohibition of Ex Post Facto laws in
{¶6} “[2.] The retroactive application of Ohio‘s Adam Walsh law violates the prohibition on retroactive laws in
{¶7} “[3.] Reclassification of Appellant constitutes a violation of the separation of powers’ [sic] doctrine.
{¶8} “[4.] Reclassification and placing additional obligations upon Appellant constitutes impermissible multiple punishment under the double jeopardy clauses of the United States and Ohio Constitutions.
{¶9} “[5.] The residency restrictions of the Adam Walsh Act violate due process.
{¶10} “[6.] Appellant cannot be subjected to registration under the community notification requirements of the Adam Walsh Act that he was not subject to under pre-Adam Walsh Act.
{¶11} “[7.] The statutory scheme violates procedural due process.
{¶12} “[8.] The new laws applied to appellant amount to a breach of contract.”
{¶13} Senate Bill 10, also known as the Adam Walsh Child Protection and Safety Act (AWA), passed in June 2007, with an effective date of January 1, 2008, amended the sexual offender classification system found in
{¶14} Under the new classification system, adopted by the AWA, the trial court must designate the offender as either a Tier I, II, or III sex offender.
{¶15} An appellate court‘s review of the trial court‘s decision to grant or deny a motion for summary judgment is de novo, as it only involves questions of law. Bertrand v. Lax, 11th Dist. No. 2004-P-0035, 2005-Ohio-3261, at ¶13; Landmark Ins. Co. v. Cincinnati Ins. Co., 11th Dist. No. 2000-P-0093, 2001-Ohio-4311, at ¶9 (citation omitted). Summary judgment is proper when three conditions are satisfied: 1) there is no genuine issue of material fact; 2) the moving party is entitled to judgment as a matter of law; and 3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made.
{¶16} In general, statutes enjoy a strong presumption of constitutionality. “An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” Cook, 83 Ohio St.3d at 409, quoting State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, at paragraph one of the syllabus. “A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality.” Id. (citation omitted). “That presumption of validity of such legislative enactment cannot be overcome unless it appear[s] that there is a clear conflict between the legislation in question and some particular provision or provisions of the
{¶17} Naples’ assignments of error will be considered out of order for the sake of clarity of presentation.
{¶18} Naples first argues that the AWA violates
{¶19} An ex post facto law “punishes as a crime an act previously committed, which was innocent when done, [or] which makes more burdensome the punishment for a crime, after its commission.” Cook, 83 Ohio St.3d at 414 (citation omitted).
{¶20} “To determine whether a statute constitutes an unconstitutional ex post facto law, a reviewing court must conduct a two-tiered analysis.” In re G.E.S., 9th Dist. No. 24079, 2008-Ohio-4076, at ¶18, citing Smith v. Doe (2003), 538 U.S. 84, 92. Since the ex post facto clause only prohibits criminal statutes and punitive schemes, the court must first ask “whether the legislature intended for the statute to be civil and non-punitive or criminal and punitive.” Id. (citations omitted). If “the legislature intended for the statute to be civil and non-punitive, then the court must ask whether the statutory scheme is so punitive in nature that its purpose or effect negates the legislature‘s intent.” Id. quoting United States v. Ward (1980), 448 U.S. 242, 248-249. To survive an ex post facto challenge, a statute must be civil and non-punitive with regard to both the
{¶21} Naples argues that the AWA is both criminal in nature and has a punitive effect. We disagree.
{¶22} When applying the intent-effects test to the former
{¶23} Naples further argues that the purpose of the statute has changed. Specifically, he maintains that under the former version of the statute, an offender‘s registration requirements were directly tied to his ongoing threat to the community and now the registration requirements only depend upon the offense committed. This argument also fails because “the old version of
{¶24} Naples further argues the fact that
{¶25} Based on the above discussion, the General Assembly did not intend for the statute to be punitive. We must now decide whether the AWA has such a punitive effect as to negate the Legislature‘s intent. While there is no test to determine whether
{¶26} The Cook court concluded that the first version of the sexual offender laws did not impose any new affirmative disability or restraint upon a criminal defendant. Cook, 83 Ohio St.3d. at 418. The court emphasized that even prior to 1997, a sexual offender had been legally obligated to register with the sheriff of the county where he lived; since the act of registering only created a minor inconvenience for an offender, it was a “de minimus administrative requirement” which was similar to obtaining a driver‘s license; and even though the dissemination of the registration information could have a detrimental effect upon a sex offender, it was not impermissible for a remedial measure to carry a sting of punishment. Id.
{¶27} The registration requirements under the AWA are more rigorous than the ones reviewed by the Cook court; the offender is now required to register in more counties, and has a legal duty to provide more information. However, the Supreme Court of Ohio continues to hold that sex offender classifications are civil in nature. Most
{¶28} Additionally, it has been noted that, even if an offender has a duty to register more often, the basic act of registering has not changed; i.e., the act is a simple procedure that can still be described as de minimus. State v. Desbiens, 2nd Dist. No. 22489, 2008-Ohio-3375, at ¶24. Accordingly, this factor does not weigh in favor of the AWA having a punitive effect.
{¶29} The second guidepost is the historical view of registration and notification requirements. The United States Supreme Court has held that “[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused.” Smith, 538 U.S. at 98-99. The Cook court‘s decision echoed this sentiment; holding that historically, the requirement of registration has been deemed a valid regulatory technique; and the dissemination of information is considered non-punitive when it supports a proper state interest. Cook, 83 Ohio St.3d at 418-419. Consequently, the second Kennedy guidepost does not weigh in favor of the conclusion that
{¶30} “The third guidepost is the element of scienter. [The AWA‘s] version of
{¶31} The fourth guidepost analyzes retribution and deterrence. In Cook, the court held that registration and notification were remedial because they seek to protect the public from registrants who may reoffend. Cook, 83 Ohio St.3d at 420. The Court explained that registration and notification do not have much of a deterrent effect on a sex offender. Further, the court found that “[t]he registration and notification provisions of
{¶32} The fifth Kennedy guidepost examines whether the behavior to which it applies is already a crime. The Cook court explained that any punishment for failing to register is a new offense that does not arise from the past sex offense; “the punishment is not applied retroactively for an act that was committed previously, but for a violation of law committed subsequent to the enactment of the law.” Id. at 421. Since this aspect of
{¶33} As for the sixth guidepost, other Ohio appellate courts have found that there is an alternative purpose which may be rationally assigned to
{¶34} The AWA version of
{¶35} The final guidepost raises the question of the excessiveness of the statutory scheme at issue in light of its alternate purpose. In upholding the pre-AWA statutory scheme in Cook, the Ohio Supreme Court focused on the scheme‘s narrowness. 83 Ohio St.3d at 421-423. The Court reasoned that the scheme imposed the harshest registration and notification requirements upon the most probable recidivists and placed the vast majority of information solely in the hands of law enforcement officials. Id. at 421-422. Further, the Court noted that the scheme provided a mechanism for offenders to submit evidence and petition to have their classification label and its obligations removed. Id. Thus, the Court concluded that the statutory scheme was not excessive in light of its protective purpose. Id. at 423.
{¶36} Although more information must be provided under
{¶37} Furthermore, other appellate districts have reviewed the AWA and have concluded that it does not violate the prohibition against ex post facto laws. G.E.S., 2008-Ohio-4076, at ¶¶18-41; State v. Longpre, 4th Dist. No. 08CA3017, 2008-Ohio-3832, at ¶15; Desbiens, 2008-Ohio-3375, at ¶¶16-34; In re Smith, 3rd Dist. No. 1-07-58, 2008-Ohio-3234, at ¶¶24-40.
{¶38} The two prongs of the intent-effects test have been satisfied; the General Assembly intended that the current provisions of
{¶39} Naples’ first assignment of error is without merit.
{¶40} Naples next argues that the retroactive reclassification impairs vested rights and imposes new obligations and additional substantial burdens on him by requiring more frequent registration, a longer period of registration, and more disclosure at registration.
{¶41} A statutory provision can be employed retroactively under limited circumstances. In State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, the Ohio Supreme Court fashioned a two-part test to determine whether statutes may be applied retroactively. “First, the reviewing court must determine as a threshold matter whether the statute is expressly made retroactive.” Id. at ¶10 (citations omitted). Next “[i]f a
{¶42} Pursuant to the AWA version of
{¶43} We must now determine whether the provisions should be characterized as substantive or remedial. A statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligation, or liabilities to a past transaction, or creates a new right. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106-107. Whereas, remedial laws 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. Id. at 107.
{¶44} In Cook, the court found that the 1997 version of the sexual offender laws was remedial in nature. The court reasoned that “many of the requirements contained in
{¶45} Even though the registration and verification requirements have been modified under the AWA, the foregoing points can still be made in regard to the present version of
{¶46} “While we recognize that AWA has a significant impact upon the lives of sex offenders, that impact does not offend Ohio‘s prohibition on retroactive laws. Public safety is the driving force behind AWA.” G.E.S., 2008-Ohio-4076, at ¶17. Therefore, the AWA does not violate Ohio‘s Retroactivity Clause.
{¶47} Naples’ second assignment of error is without merit.
{¶48} In his fourth assignment of error, Naples argues that his reclassification constitutes “successive punishment, and therefore, a double jeopardy violation under the Fifth and Fourteen Amendments of the United States Constitution and Article I, Section 10, of the Ohio Constitution.” He claims that he “was first punished when he was sentenced for his criminal conduct and classified under Ohio‘s prior sex offender law. Now, several years later, the State seeks to enhance his punishment by subjecting him to the new sex offenders’ law‘s more onerous requirements.”
{¶49} The Double Jeopardy Clause of the federal Constitution states that an individual cannot be placed “in jeopardy of life or limb” for the same offense twice. “[T]he United States Supreme Court has also applied the clause to prevent a state from punishing twice, or from attempting a second time to criminally punish for the same offense.” Byers, 2008-Ohio-5051, at ¶100 (citations omitted). “Thus, the threshold question in a double jeopardy analysis is whether the government‘s conduct involves
{¶50} In Williams, the Ohio Supreme Court found no merit with the argument that former
{¶51} Since we find that the AWA,
{¶52} Naples’ fourth assignment of error is without merit.
{¶53} In his fifth assignment of error, Naples argues that the residency and travel restrictions added violate the due process clause, as well as the right to privacy, guaranteed by Section I, Article I, of the Ohio Constitution.
{¶54} Naples argues that the AWA restricts how close he may live to a school or day care facility, which restricts his liberty and infringes on his fundamental right to live where he wishes.
{¶55} “The difference between pre-Senate Bill 10
{¶56} The Ohio Supreme Court has held that “[b]ecause
{¶57} Therefore, if Naples bought his home and committed his offense before the effective date of the statute,
{¶58} Moreover, the Eighth Appellate District has held that where an offender “is currently in prison,” that offender is not presently subject to the residency restrictions, resulting in no present harm being inflicted on the offender. State v. Freer, 8th Dist. No. 89392, 2008-Ohio-1257, ¶¶29-30. As a result, the court dismissed a due process challenge to the residency restrictions on the grounds that such issue was not ripe for review. Id. at ¶30.
{¶59} Naples’ fifth assignment of error is without merit.
{¶60} In his sixth assignment of error, Naples contends that the AWA cannot be applied retroactively to him. As addressed above,
{¶61} Naples also argues, in the alternative, that if it does apply and he is reclassified as a Tier III sex offender, he cannot be subject to the registration or community notification requirements under
{¶62} Naples would have automatically been subject to community notifications under Megan‘s Law, the version that existed immediately prior to the AWA version, because he was classified as a sexual predator under that law. See Former
{¶63} Naples’ sixth assignment of error is without merit.
{¶64} In his next assignment of error, Naples argues that he was denied procedural due process rights when he was automatically reclassified as a Tier III sex offender without a meaningful opportunity to challenge his reclassification.
{¶65} Procedural due process requires notice and an opportunity to be heard where the state seeks to infringe a protected liberty or property interest. Williams v. Dollison (1980), 62 Ohio St.2d 297, 299. A constitutionally protected liberty interest has been defined as freedom from bodily restraint and punishment. Ingraham v. Wright (1977), 430 U.S. 651, 673-674 (citation omitted).
{¶66} This court has previously found that “[n]either the Due Process Clause of the Fourteenth Amendment to the United States Constitution nor the analogous clause in Ohio‘s Constitution, Section 16, Article I, requires a hearing in this case.” State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059, at ¶104 (citation omitted). In concluding that no due process violation had occurred, this court reasoned that a defendant does not suffer “any bodily restraint as a result of the registration requirement imposed on him as a sex offender. Nor has he been punished.” Id. at ¶105 (citations omitted). Thus, because Naples has not been deprived of any liberty or property interest, a hearing is not necessary. Consequently, his procedural due process has not been violated.
{¶67} Naples’ seventh assignment of error is without merit.
{¶68} In his eighth assignment of error, Naples argues that he entered into a plea agreement with the State in which he agreed to plead guilty to two counts of Rape, knowing that there would be a civil ramification pursuant to
{¶69} “A plea bargain itself is contractual in nature and subject to contract-law standards.” State v. Butts (1996), 112 Ohio App.3d 683, 685-686 (citation omitted).
Ordinarily, if one side violates a term of the plea agreement, the other party has a right to pursue certain remedies, including rescission of the agreement. State v. Hart, 8th Dist. No. 84531, 2005-Ohio-107, at ¶8. However, in applying the elementary rules of contract law to plea agreements, the courts of this state have held that an alleged breach of such an agreement cannot be based upon an action which occurs following the performance of the various terms. See State v. Pointer, 8th Dist. No. 85195, 2005-Ohio-3587, at ¶9. That is, once a criminal defendant has entered his guilty plea and has been sentenced by the trial court, a breach of contract can no longer occur because both sides have fully performed their respective obligations under the plea agreement. Slagle v. State, 145 Ohio Misc.2d 98, 2008-Ohio-593, at ¶59.
{¶70} The new classification system cannot be deemed a violation of the terms of Naples’ plea agreement because the performance of that contract was fully completed when he entered his plea and was sentenced.
{¶71} Naples’ eighth assignment of error is without merit.
{¶72} In his third assignment of error, Naples argues that his reclassification violates the separation of powers doctrine by interfering with a prior judicial adjudication regarding his sex offender status. Naples further argues that the “legislature‘s attempts to heap additional obligations upon the Appellant also violates the Doctrine of Res Judicata.” Moreover, “such interference with previous judicial adjudications impermissibly encroaches on judicial authority and violates the separation of powers doctrine.”
{¶73} “Although the Ohio Constitution does not contain explicit language establishing the doctrine of separation of powers, it is inherent in the constitutional
{¶74} The reclassification of offenders pursuant to
{¶75} Unlike the review vested in courts of appeal, the classification of sex offenders into categories has always been a legislative mandate, not an inherent power of the courts. Smith, 2008-Ohio-3234, at ¶39 (citation omitted). Similarly, this court has observed [t]he enactment of laws establishing registration requirements for, e.g., motorists, corporations, or sex offenders, is traditionally the province of the legislature and such laws do not require judicial involvement. Swank, 2008-Ohio-6059, at ¶99.
{¶76} However, [t]he administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers. State ex rel. Johnston v. Taulbee (1981), 66 Ohio St.2d 417, at paragraph one of the syllabus. [I]t is well settled that the legislature cannot annul, reverse or modify a judgment of a court already rendered. Bartlett v. Ohio (1905), 73 Ohio St. 54, 58; Plaut v. Spendthrift Farm, Inc. (1995), 514 U.S. 211, 219 (Congress may not interfere with the power of the federal judiciary to render dispositive judgments by command[ing] the federal courts to reopen final judgments) (citation omitted). A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted. Gompf v. Wolfinger (1902), 67 Ohio St. 144, at paragraph three of the syllabus. That the conclusions are uniform upon the proposition that a judgment which is final by the statutes existing when it is rendered is an end to the controversy, will occasion no surprise to those who have reflected upon the distribution of powers in such governments as ours, and have observed the uniform requirement that legislation to affect remedies by which rights are enforced must precede their final adjudication. Id. at 152-153.
{¶77} A determination of an offender s classification under former
{¶78} Naples classification as a sexual predator, with definite registration requirements, constituted a final order of the lower court. Therefore, no court can now be statutorily directed or required to modify the prior judgment provisions concerning Naples notification and registration requirements without violating separation of powers and res judicata principles.
{¶79} Other appellate districts have held that the amendments to the Act do not vacate final judicial decisions without amending the underlying applicable law or order the courts to reopen a final judgment. State v. Linville, 4th Dist. No. 08CA3051, 2009-Ohio-313, at ¶23, citing Slagle, 2008-Ohio-593, at ¶21. According to these cases and the arguments of the State, the Assembly has enacted a new law, which changes the different sexual offender classifications and time spans for registration: (sic) requirements, among other things, and is requiring that the new procedures be applied to offenders currently registering under the old law or offenders currently incarcerated for committing a sexually oriented offense. Slagle, 2008-Ohio-593, at ¶21. We disagree. The imposition of the new enhanced notification and registration requirements of the Act changes the terms of prior final sentencing judgments.
{¶80} It does not matter that the current Sex Offender Act formally amends the underlying law and does not order the courts to reopen final judgments. The fact remains that the General Assembly cannot annul, reverse or modify a judgment of a
{¶81} It is also argued that the Ohio Supreme Court has characterized the registration and notification requirements of the Sex Offender Act as a collateral consequence of the offender s criminal acts, in which the offender does not possess a reasonable expectation of finality. State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, at ¶34 (citations omitted); Linville, 2009-Ohio-313, at ¶24 (citation omitted).
{¶82} This argument also is unavailing. In Ferguson, as in Cook, the Supreme Court did not consider the argument that the enactment of House Bill 180/Megan s Law overturned a valid, final judgment. Rather, the Court was asked to determine whether the retroactive application of the Sex Offender Act violated the ex post facto clause or the prohibition against retroactive legislation. The court did not consider the arguments based on separation of powers and res judicata raised herein. In Cook, the Sex Offender Act was applied retroactively to persons who had not been previously classified as sexual offenders. There were no prior final judicial determinations regarding the offenders status as sexual offenders. Thus, the Supreme Court could properly state that the new burdens imposed by the law did not impinge on any
{¶83} Reliance upon the Supreme Court s reasoning in Cook and Ferguson is further misplaced since the separation of powers and res judicata doctrines apply equally in civil (remedial) contexts as they do in criminal (punitive) contexts. Akron v. Smith, 9th Dist. Nos. 16436 and 16438, 1994 Ohio App. LEXIS 1859, at *4 ( [t]he doctrine of res judicata *** applies equally to criminal and to civil litigation ) (citation omitted).
{¶84} The General Assembly s purpose in enacting the Adam Walsh Act, to provide increased protection and security for the state s residents from persons who have been convicted of, or found to be delinquent children for committing, a sexually oriented offense or a child-victim oriented offense, is properly realized in its application to cases pending when enacted and those subsequently filed.
{¶85} Under this holding, Naples will still have to complete his original sentence and continue registering as a sexual predator for life pursuant to the trial court s September 8, 2000 Judgment Entry.
{¶86} Naples third assignment of error has merit.
{¶87} For the foregoing reasons, the Judgment Entry of the Trumbull County Court of Common Pleas, granting Summary Judgment, is reversed. However, Naples shall continue registering as a sexual predator pursuant to the trial court s September 8, 2000 Judgment Entry. Costs to be taxed against appellee.
COLLEEN MARY O TOOLE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
TIMOTHY P. CANNON, J., dissents with a Dissenting Opinion.
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COLLEEN MARY O TOOLE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
{¶88} I concur with the majority s disposition that the application of the AWA to appellant violates the doctrine of separation of powers, thus requiring us to reverse. However, I disagree and write separately with respect to the following issues.
{¶89} Initially, this writer notes that under the new legislation, the basic system for sexual offender classification was altered considerably. Prior to S.B. 10, if a criminal
{¶90} Pursuant to the new law, the foregoing three labels for a sexual offender are no longer applicable. Instead, a defendant who has committed a sexually oriented offense can only be designated as either a sex offender or a child-victim offender. Furthermore, the extent of the defendant s registration and notification requirements will depend upon his placement in one of three tiers of sexual offenders. The determination of which tier is applicable to a given defendant turns solely upon the exact crime or offense he has committed.
{¶91} The second major change of the sexual offender system concerns the duration of the registration and notification requirements. Prior to S.B. 10, the governing law generally provided for the following: (1) if a defendant was deemed a sexually oriented offender, he was required to register once each year for a period of ten years, but there was no notification requirement; (2) if he was labeled as a habitual sex offender, he had to register once every six months for twenty years, and the community could be given notice of his presence at the same rate; and (3) if he was designated a sexual predator, the duty to register was once every three months for life, and notification could also take place at the same rate for life. Under the new scheme, the registration and notification requirements are substantially different: (1) if the
{¶92} Although the Tier III requirements are essentially the same as for a sexual predator, this writer notes that the new tier structure classifies sex offenders based on their convictions rather than on factors as with the previous law. Also, the registration requirements for sex offenders, including sexual predators, have now become more stringent due to the new law.
{¶93} As to the specific requirements of registration, the original version of the sexual offender law stated that the defendant only had to register with the sheriff of the county where he was a resident. See Cook, supra, at 408. Under the latest version of the scheme, though, the places where registration is required has been expanded to now include: (1) the county where the offender lives; (2) the county where he attends any type of school; (3) the county where he is employed if he works there for a certain number of days during the year; (4) if the offender does not reside in Ohio, any county of this state where he is employed for a certain number of days; and (5) if he is a resident of Ohio, any county of another state where he is employed for a certain number of days. Similarly, the extent of the information which must be provided by an offender
{¶94} Ex Post Facto
{¶95} Ex post facto challenges will only lie against criminal statutes. See, e.g., Swank, supra, at ¶69. When considering such challenges, courts must apply the intent-effects test. Id.
{¶96} The ex post facto clause extends to four types of laws:
{¶97} 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense, in order to convict the offender. (Emphasis added.) Rogers v. Tennessee, (2001), 532 U.S. 451, 456, ***, quoting Calder v. Bull (1798), 3 U.S. 386, 390, *** (seriatum opinion of Chase, J.) State v. Elswick, 11th Dist. No. 2006-L-075, 2006-Ohio-7011, at ¶17-18. (Parallel citations omitted.)
{¶98} In Smith v. Doe, supra, the United States Supreme Court summarized the intent-effects test, in a case concerning a challenge to the constitutionality of Alaska s then-sex offender registration law. Speaking for the Court, Justice Kennedy wrote:
{¶99} We must ascertain whether the legislature meant the statute to establish civil proceedings. Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate (the State s) intention to deem it civil. Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-249 (1980)). Because we ordinarily defer to the legislature s stated intent, Hendricks, supra, at 361, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Hudson v. United States, 522 U.S. 93, 100 (1997) (quoting Ward, supra, at 249); see also Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 267, 290 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 (1984).
{¶100} Whether a statutory scheme is civil or criminal is first of all a question of statutory construction. Hendricks, supra, at 361 (internal quotation marks omitted); see also Hudson, supra, at 99. We consider the statute s text and its structure to determine the legislative objective. Flemming v. Nestor, 363 U.S. 603, 617 (1960). A conclusion that the legislature intended to punish would satisfy an ex post facto
{¶101} In this case, the Ohio General Assembly specifically denominated the remedial purposes of S.B. 10. See, e.g., Swank, supra, at ¶73-80. In Smith, the United States Supreme Court found similar declarations by the Alaskan legislature highly persuasive. Id. at 93. However, a closer reading of S.B. 10 s provisions casts doubt upon the legislature s declaration.
{¶102} First, there is the simple fact that S.B. 10 is part of Title 29 of the Revised Code. The United States Supreme Court rejected the notion that a statute s placement within a criminal code is solely determinative of whether the statute is civil or criminal in Smith. Id. at 94-95. However, it is clearly indicative of the statute s purpose. See, e.g., Mikaloff v. Walsh (N.D. Ohio Sept. 4, 2007), Case No. 5:06-CV-96, 2007 U.S. Dist. LEXIS 65076 at 15-16.
{¶103} Second, those portions of S.B. 10 controlling the sentencing of sex offenders indicate that the classification is part of the sentence imposed — and thus, part of the offender s punishment. See, e.g.,
{¶104} Both the placement of S.B. 10 within the Revised Code, and the language of the statute, indicates a punitive, rather than remedial, purpose.3 Further, as Judge James J. Sweeney of the Eighth Appellate District recently noted regarding the intent of S.B. 10:
{¶105} *** the General Assembly expressed a remedial intent in the legislation. However, the stated purpose of protecting the public from those likely to reoffend is
{¶106} Consequently, I believe that the intent of S.B. 10 is punitive, rather than remedial.
{¶107} Moreover, an exploration of the effects of S.B. 10 reveals that it is a punitive, criminal statute, rather than remedial and civil. When considering whether a statute s effects are punitive under the ban of ex post facto laws, courts are required to consider the factors set forth by the United States Supreme Court in Kennedy v. Mendoza-Martinez, supra. Cook, supra, at 418. These include: (1) whether the law imposes an affirmative disability or restraint; (2) whether it imposes what has historically been viewed as punishment; (3) whether it involves a finding of scienter; (4) whether it promotes the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether it promotes some rational purpose other than punishment; and (7) whether it is excessive in relation to this other rational purpose.
{¶108} Regarding the first factor, S.B. 10 clearly imposes significant affirmative disabilities upon offenders. They must register personally with the sheriffs of any county
{¶109} Vast amounts of personal information must be turned over by offenders to the sheriffs departments with which they register. Some of this information bears no relationship to any conceivable matter of public safety, such as where the offender parks his or her automobile. Some of the information is so vaguely described as to render compliance impossible. What, for instance, is included amongst automobiles regularly available to an offender, or telephones used by an offender? Is an offender required to report to the sheriff when he or she has a loaner from the auto body shop? Is an offender required to report if he or she stopped in a mall and used a public phone? Must an offender register the cell phone number of a spouse or child, which the offender only uses on rare occasions?
{¶110} S.B. 10 significantly limits where an offender may live. The right to live where one wishes is a fundamental attribute of personal liberty, protected by the United States Constitution. Omiecinski, supra, at ¶82. (Sweeney, J., dissenting in part.)
{¶111} S.B. 10 requires offenders to surrender any information required by the bureau of criminal identification and investigation — or face criminal prosecution. Consequently, it grossly invades offenders rights to be free of illegal searches and to counsel, at the very least.
{¶112} Thus, S.B. 10 imposes significant disabilities and restraints upon offenders, which indicates it is an unconstitutional ex post facto law under the first Kennedy factor.
{¶114} Under the third Kennedy factor, we must consider whether the registration and notification requirements of S.B. 10 only come into play upon a finding of scienter. Clearly they do not. There are strict liability sex offenses, such as statutory rape. Nevertheless, as the Supreme Court of Alaska remarked in considering this factor in a challenge to Alaska s version of Megan s Law, the vast majority of sex offenses do require a finding of scienter. Doe v. Alaska (2008), 189 P.3d 999, 1012-1013. I believe, as did the Alaska court, that this factor provides some support for the punitive effect of S.B. 10. Cf. id. at 1013.
{¶115} The fourth Kennedy factor requires us to determine whether the registration and notification requirements of S.B. 10 fulfill two of the traditional aims of punishment: retribution and deterrence. Retribution is vengeance for its own sake. It does not seek to affect future conduct or solve any problem except realizing justice. Deterrent measures serve as a threat of negative repercussions to discourage people from engaging in certain behavior. Remedial measures, on the other hand, seek to solve a problem (***) [.] Doe, supra, at 1013, fn. 107, quoting Artway v. Attorney Gen. of N.J. (C.A.3, 1996), 81 F.3d 1235, 1255.
{¶116} There are certain retributive factors in the registration requirements: i.e.,
{¶117} Further, offenders personal information is available online, from the Attorney General, to the entire world. This creates a deterrent effect, both in the embarrassment and shame, which encourages people so tempted not to commit sex offenses, and by allowing the public to identify potential dangers to themselves and their families.
{¶118} Thus, S.B. 10 s requirements fulfill the traditionally punitive roles of retribution and deterrence.
{¶119} The fifth Kennedy factor questions whether the conduct to which a law applies is already a crime. I find the reasoning of the court in Doe, supra, at 1014-1015, persuasive. That court noted the law in question applied only to those convicted of, or pleading guilty to, a sex offense: not to those, for instance, who managed to plead out to simple assault, or found not guilty due to an illegal search and seizure. Ultimately, the court held:
{¶120} In other words, [the law] fundamentally and invariably requires a judgment of guilt based on either a plea or proof under the criminal standard. It is therefore the determination of guilt of a sex offense beyond a reasonable doubt (or per a knowing plea), not merely the fact of the conduct and potential for recidivism, that
{¶121} Similarly, only conviction for, or a guilty plea to, a sex offense (and kidnapping of a minor) triggers the provisions of S.B. 10. Consequently, the fifth Kennedy factor supports the conclusion that S.B. 10 is punitive in effect.
{¶122} Under the sixth Kennedy factor, we consider whether the law has some rational purpose other than punishment. Clearly S.B. 10 has an important remedial purpose, by keeping law enforcement and the public aware of potential recidivists amongst sex offenders. But the seventh Kennedy factor requires analysis of whether the law in question is excessive in relation to that alternate purpose. S.B. 10 is excessive. It punishes offenders by requiring personal registration, in a day of instant communications. It punishes by requiring offenders to turn over personal information bearing no rational relationship to the remedial purpose of the law. It punishes offenders by restricting them from living near schools and day care facilities, even if their crime had no relationship to children. It punishes offenders by requiring them to submit to any questioning, on any subject, by the BCI.
{¶123} S.B. 10 s intent is punitive. Its effect is punitive. S.B. 10 violates the federal constitutional ban on ex post facto laws.
{¶124} Retroactivity
{¶126} The analysis of claims of unconstitutional retroactivity is guided by a binary test. We first determine whether the General Assembly expressly made the statute retrospective. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶10 ***. If we find that the legislature intended the statute to be applied retroactively, we proceed with the second inquiry: whether the statute restricts a substantive right or is remedial. Id. If a statute affects a substantive right, then it offends the constitution. Van Fossen (v. Babcock & Wilcox Co. (1988)), 36 Ohio St.3d (100,) at 106 ***. [State v.] Ferguson, supra, at ¶13. Swank, supra, at ¶91. (Parallel citations omitted.)
{¶127} A statute is substantive if it: (1) impairs or takes away vested rights; (2) affects an accrued substantive right; (3) imposes new burdens, duties, obligations or liabilities regarding a past transaction; (4) creates a new right from an act formerly giving no right and imposing no obligation; (5) creates a new right; or (6) gives rise to or takes away a right to sue or defend a legal action. Van Fossen, supra, at 107. A later enactment does not attach a new disability to a past transaction in the constitutional sense unless the past transaction created at least a reasonable expectation of finality. State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281. Except with regard to constitutional protections against ex post facto laws, ***, felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation. (Emphasis added.) Id. at 281-282.
{¶129} Double Jeopardy
{¶130} The Supreme Court of Ohio has held:
{¶131} The Fifth Amendment to the United States Constitution provides that no person shall (***) be subject for the same offence to be twice put in jeopardy of life or limb. Similarly,
{¶132} Here, in 2000, appellant pleaded guilty to two counts of rape. He was sentenced for these offenses and adjudicated a sexual predator. Additional punitive measures have now been placed on appellant, as he is required to comply with the new, more stringent registration requirements. Essentially, appellant is being punished a second time for the same offense. The application of the current version of
{¶133} Substantive Due Process
{¶134} I believe this issue lacks ripeness.
{¶135} The basic principle of ripeness may be derived from the conclusion that judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.
{¶136} Here, appellant has not alleged an actual deprivation of his property rights, i.e., that he is forced to live in a certain part of town, on a certain street, or was forced to move. The fact that by dictating where he cannot live is essentially the same as dictating where he can live indicates that appellant has standing to appeal this issue. However, as he has not presented evidence that he has been prejudiced by his status and/or that his ability to domicile has been actually restrained, in that he cannot live where he chooses or he has been denied housing because the place where he wants to live is prohibited, he has not presented us with a justiciable issue. Appellant has standing to appeal as he is classified under the new more restrictive statute. However, our lack of ability to adjudicate this issue is lack of harm to the person with standing, and goes to the facts at hand or ripeness of a pending case and controversy, not the person s ability and standing to raise it.
{¶137} Breach of Contract
{¶138} Again,
{¶140} When analyzing whether a law violates the ban against the impairment of contracts, this court applies a tripartite test. Trumbull Cty. Bd. of Commrs. v. Warren (2001), 142 Ohio App.3d 599, 602-603. First, there must be a determination if a contractual relation exists. Id. at 602. If it does, we must ascertain whether a change in the law impairs that relationship. Id. at 602-603. Finally, we must determine if that impairment is substantial. Id. at 603.
{¶141} It is well established that a plea agreement is viewed as a contract between the State and a criminal defendant. Santobello v. New York (1971), 404 U.S. 257, ***. Accordingly, if one side breaches the agreement, the other side is entitled to either rescission or specific performance of the plea agreement. Id., at 262. State v. Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, at ¶13. (Parallel citations omitted.) Ohio courts have noted that, in the main, the contract is completely executed once the defendant has pleaded guilty, and the trial court has sentenced him or her. See, e.g., State v. McMinn (June 16, 1999), 9th Dist. No. 2927-M, 1999 Ohio App. LEXIS 2745, at 11; accord, Pointer, supra, at ¶9. However, to the extent the plea agreement contains further promises, the contract remains executory, and may be enforced by either party. See, e.g., Parsons v. Wilkinson (S.D. Ohio 2006), Case No. C2-05-527, 2006 U.S. Dist. LEXIS 54979 (allegation by inmate that plea agreement superseded parole board s authority regarding timing of parole hearing sufficient to withstand state attorney general s motion to dismiss in Section 1983 action), citing Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-6719, at ¶28; see, also, McMinn, supra, at 11, fn. 6.
{¶142} Clearly, appellant s plea agreement contained further terms, beyond his agreement to plead guilty to a certain charge, followed by sentencing by the trial court. The state implied those terms into the agreement as a matter of law, pursuant to former
{¶143} Thus, I believe that appellant s plea agreement with the state remained an executory contract at the time of his reclassification under S.B. 10, meeting the first requirement for determining if a law breaches the ban on impairment of contracts. Trumbull Cty. Bd. of Commrs., supra, at 602.
{¶144} It appears that the second part of the test — whether a change in the law has impaired the contract established between appellant and the state, Trumbull Cty. Bd. of Commrs. at 602-603, is also met by S.B. 10. Further, the third part of the test for determining if a law unconstitutionally impairs a contract is whether the impairment is substantial, Trumbull Cty. Bd. of Commrs. at 603. Although the Tier III requirements are essentially the same as for a sexual predator, this writer notes that the new tier structure classifies sex offenders based on their convictions rather than on factors as with the previous law. Also, the registration requirements for sex offenders, including sexual predators, have now become more stringent due to the new law.
{¶146} For the foregoing reasons, I would reverse the judgment of the trial court, and remand the matter for further proceedings.
{¶147} I respectfully concur in part and dissent in part.
____________________
TIMOTHY P. CANNON, J., dissenting.
{¶148} I respectfully dissent from the majority s opinion. For the reasons stated in this court s opinion in State v. Ettenger, 11th Dist. No. 2008-L-054, 2009-Ohio-3525, at ¶56-59 & 84, the application of Ohio s Adam Walsh Act to Naples is not unconstitutional. Naples did not have an expectation of finality in his prior adjudication as a sexual predator. As stated in Ettenger, a lifetime of reporting is a lifetime of reporting. Id. at ¶84.
{¶149} The judgment of the trial court should be affirmed.