BERTEENA ROLLINS, ET AL. v. STATE OF OHIO
Nos. 96192, 96193, and 96194
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 30, 2011
2011-Ohio-3264
BEFORE: Cooney, J., Boyle, P.J., and E. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CV-646989, CV-647275, and CV-649265
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Berteena Rollins and Harold Washington
Robert L. Tobik
Chief Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
For Antonio Orr
Antonio Orr, pro se
24411 Garden Drive, #509
Euclid, Ohio 44123
COLLEEN CONWAY COONEY, J.:
{¶ 1} This consolidated appeal arises from the trial court‘s ruling in three sex offender reclassification cases. Defendant-appellant, the state of Ohio (“State“), appeals the trial court‘s granting relief from reclassification for plaintiffs-appellees, Berteena Rollins
{¶ 2} In 1998, Rollins (Appeal No. 96192) pled guilty to attempted rape. In 1991, Washington (Appeal No. 96193) pled guilty to three counts of sexual battery and was sentenced to two years’ probation. After violating his parole twice, Washington was sеntenced to prison for his original offense. In 1999, Orr (Appeal No. 96194) was convicted of corruption of a minor and sentenced to 18 months in prison.2 The State contends that the records in these three cases contain no mention of а classification hearing or a court-ordered classification.3
{¶ 3} Upon release from prison and pursuant to the version of
“Under Megan‘s Law, offenders who had committed a sexually oriented offense that was not registration-exempt were labeled a sexually oriented offender, a habitual sexual offender, or a sexual predator based upon the crime committed and the findings made by the trial court at a sexual-offender classification hearing.” State v. Green, Hamilton App. No. C-090650, 2010-Ohio-4371, at ¶1, citing State v. Clay, 177 Ohio App.3d 78, 2008-Ohio-2980, 893 N.E.2d 909.
{¶ 4} However, a sexual offender classification hearing wаs only required under
{¶ 5} In January 2008, Ohio‘s Adam Walsh Act (“AWA“) went into effect, repealing Megan‘s Law and altering the classification, registration, and notification scheme of convicted sex offenders. See
{¶ 6} As a result, appellees individually filed petitions contesting their reclassifiсations, arguing that it violated numerous constitutional rights. In light of the
{¶ 7} The State now appeals, raising twо assignments of error.
{¶ 8} In the first assignment of error, the State argues that the trial court erred in applying Bodyke to the appellees because they were not classified under Megan‘s law by an Ohio court. The State contends that reclassifying appellees under the AWA is not a violation of the separation of powers doctrine when their original classifications were automatic under the law. In the second assignment of error, the State argues that the trial court erred in applying Bodyke to the appellees because they did not demonstrate by clear and convincing evidence that they were previously classified by an Ohio court. Both assignments of error pertain to the same set of facts and aрplicable law and will therefore be addressed together.
{¶ 9} The interpretation of the constitutionality of a statute presents a question of law. Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025. “Questions of law are reviewed de novo, independently and without deference to the trial court‘s decision.” Id.
{¶ 10} “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” and “before a court may declare it unconstitutional it must appear beyond a reasonable doubt that
{¶ 11} Moreover, the presumption of validity cannot bе overcome unless it appears that there is a clear conflict between the legislation in question and some particular provision or provisions of the Constitution. Xenia v. Schmidt (1920), 101 Ohio St. 437, 130 N.E. 24, paragraph two of the syllabus.
{¶ 12} In Bodyke, the Ohio Supreme Court addressed the constitutionality of the AWA, as it applies to sex offenders whose cases have been fully adjudicated prior to the enactment of the AWA, and found that:
“[t]he AWA‘s provisions governing the reclassification of sex offenders alrеady classified by judges under Megan‘s Law [
R.C. 2950.031 and2950.032 ] violate the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferеs with the judicial power by requiring the reopening of final judgments.” Bodyke at ¶55.
{¶ 13} As a result, the court declared
”
R.C. 2950.031 and2950.032 , which require the attorney general to reclassify sex offenders who have already been classified by court order under former lаw, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine.”
R.C. 2950.031 and2950.032 , which require the attorney general to reclassify sex offenders whose clаssifications have already been adjudicated by a court and made the subject of a final order, violate the separation of powers doctrine by requiring theopening of final judgments.” Bodyke, paragraph two and three of the syllabus (emphasis added).
{¶ 14} The State argues that Bodyke does not apply to the appellees because thеy were not “classified by court order,” nor were their classifications “adjudicated by a court and made the subject of a final order.” Id. The State contends that this court should follow the First and Twelfth Appellate Districts, and distinguish between those sеx offenders who were classified by court order and those who were automatically classified by operation of law. The State argues that reclassifying a sexual offender who was originally classified automatically does not violate the separation of powers doctrine and therefore, is not unconstitutional.
{¶ 15} In State v. Green, Hamilton App. No. C-090650, 2010-Ohio-4371,4 the First District held that:
{¶ 16} “that the Supreme Court‘s decision in Bodyke does not apply to cases in which there is no prior court order classifying the offender under a sex-offender category. If there is no рrior judicial order classifying the sex offender, then reclassification by the attorney
{¶ 17} In Boswell v. State, Warren App. No. CA2010-01-006, 2010-Ohio-3134, the Twelfth District also held that reclassification by the attorney general under the AWA does not violate the separation of pоwers doctrine when there is no prior court order because it does not require the opening of a final court order or a review by the executive branch of the trial court‘s decision.
{¶ 18} Although the Green and Boswell courts have interpreted the language of Bodyke to limit the separation of powers violation to offenders classified by court order, this court has consistently held that the remedy of Bodyke prevents the AWA from being applied to any sexual offender previously classified under Megan‘s Law. The Ohio Supreme Court remedied the violation of the separation of powers dоctrine by completely severing the provisions of the AWA that gave the attorney general the authority to reclassify sex offenders. ”
{¶ 19} In Means v. State, Cuyahoga Aрp. Nos. 92936-92939, 92941-92945, 2010-Ohio-3082, discretionary appeal not allowed, 126 Ohio St.3d 1619, 2010-Ohio-5101, 935 N.E.2d 856, this court found that the attorney general‘s reclassification of nine appellants, previously classified under Ohio‘s Megan‘s Law, was invalid. Eight of the appellants were classified automatically. Regardless of their automаtic classification, this court found that:
“In accordance with the Ohio Supreme Court‘s holding in Bodyke, the reclassifications of the within appellants by the attorney general are invalid, and the prior judicial classifications and community-notification and registration orders previously imposed by judgеs should be reinstated.” Means at ¶6.
{¶ 20} In State v. Smith, Cuyahoga App. No. 92550, 2010-Ohio-2880, this court found that Bodyke applied to a defendant whose initial classification as a sexually oriented offender was “automatic” under Megan‘s Law.
“The record reflects that in 1988, Smith originally was convicted in CR-225337 of the crimes of rape, kidnapping, and gross sexual imposition. In 2001, Smith completed his sentence in that case and was released from prison. Pursuant to the version of
R.C. Chapter 2950 then in effect, commonly referred to as ‘Megan‘s Law,’ Smith ‘automatically’ was classified as a sexually oriented offender. See, State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-1169, ¶15, 773 N.E.2d 502.”* * *
“The supreme court stated that these statutes ‘may not be applied to offenders previously adjudicated by judges under Megan‘s Law, and the classifications and community-notification and registration orders imposed previously by judges are
reinstated.’ [Bodyke] at ¶ 66.” Smith at ¶4 & 28. See, also, State v. Juergens, Clark App. No. 09CA0076, 2010-Ohio-6482.
{¶ 21} We are not alone in our interpretation of Bodyke. In State v. Hazlett, Franklin App. No. 09AP-1069, 2010-Ohio-6119, there was no evidence that the defendant had been classified as a sexual offender by court order. It appeared that Hazlett‘s classification arose automatically by operation of law. Regardless, the court found that:
{¶ 22} “Being a court of inferior jurisdiction to the Supreme Court of Ohio, we must follow its mandates. State v. Ryan, 10th Dist. No. 08AP-481, 2009-Ohio-3235, ¶48. See also State v. Land, 3d Dist. No. 2-07-20, 2007-Ohio-6963, ¶9; State v. Withers, 10th Dist. No. 08AP-39, 2008-Ohio-3175, ¶13. While there is much debate over what the Supreme Court of Ohio may have meant or intended when it decided Bodyke and Chojnacki, we, as a court of inferior jurisdiction to that of the Supreme Court, are bound to follow what it did, which was to sever as unconstitutional
{¶ 23} In light of the precedent of this district and others, we find that regardless of the manner in which appellees were originally classified,
{¶ 24} Accordingly, thе State‘s two assignments of error are overruled.
Judgment affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR