State v. Brewer

Jul 28, 1999
Nos. 98-390, 98-739, 98-740 and 98-741
Reporters:
Before:
Moyer
Moyer, C.J.

The cases before us raise the question of whether the statutory scheme created by the General Assembly allows a sexual predator hearing under R.C. 2950.09(C)(2) to take place after an offender has already been released from confinement. We hold that in order to adjudicate an offender as a sexual predator, the statutes require that a hearing be conducted prior to the release of the prisoner, and further that the hearing must be scheduled far enough in advance of the offender’s release date to allow officials to satisfy their statutory notification duties under R.C. 2950.03(A)(1).

R.C. Chapter 2950 contains a number of interrelated sections setting forth the substantive and procedural requirements for the classification and registration of sexual offenders. The cases before us all involve offenders who were convicted and sentenced prior to January 1, 1997, and were serving a term of confinement on or after that date. Therefore, our decision and opinion are confined to the statutory provisions that relate to this particular group of offenders.

Under R.C. Chapter 2950, all convicted sexual offenders are required to register at least yearly for a minimum of ten years. R.C. 2950.04; 2950.06; 2950.07. If the offender has “been adjudicated as being a sexual predator,” the registration requirements and related consequences are more onerous. For example, offenders who have been adjudicated as being a sexual predator are required to provide additional information at the time of registration pursuant to R.C. 2950.04(C), to provide more frequent periodic verifications pursuant to R.C. 2950.06(B)(1), and to continue to register and provide periodic verification requirements until the offender’s death pursuant to R.C. 2950.07(B)(1). In addition, the registration information provided by a sexual predator is available to victims who request it pursuant to R.C. 2950.10, and is provided to the surrounding community whether or not citizens specifically request it pursuant to R.C. 2950.11. Also, R.C. 2950.13 gives the Attorney General authority to make additional rules addressing offenders who have been adjudicated to be sexual offenders.

R.C. Chapter 2950 defines the term “adjudicated as being a sexual predator” clearly and unambiguously. R.C. 2950.01(G)(3) reads as follows:

“An offender is ‘adjudicated as being a sexual predator’ if any of the following applies:

“(3) Prior to [January 1, 1997], the offender was convicted of or pleaded guilty to, and was sentenced for, a sexually oriented offense, the offender is imprisoned in a state correctional institution on or after [January 1, 1997], and, prior to the offender’s release from imprisonment, the court determines pursuant to division (C) of section 2950.09 of the Revised Code that the offender is a sexual predator.” (Emphasis added.)

Thus, if the determination is not made prior to the offender’s release, the offender has not been “adjudicated as being a sexual predator” according to the statute and is not subject to the more onerous requirements imposed upon that class of offenders. In effect, though the court may not lose jurisdiction to hold a hearing, the hearing cannot have the result of adjudicating the offender to be a sexual predator if it is not held prior to the offender’s release.

The determination as to whether an offender should be classified a sexual predator is made pursuant to the procedures set forth in R.C. 2950.09(C). The court may not make a determination that the offender is a sexual predator without a hearing. R.C. 2950.09(C)(2). Although R.C. 2950.09(C)(2) does not specifically state that this hearing is to be conducted prior to the offender’s release, there is no other logical way to interpret this section. Because the sexual predator determination must be made prior to the offender’s release under the statute, and the only purpose of the hearing is to make that determination, it follows that the hearing must be conducted prior to the offender’s release in order to have any effect.

There are other statutory requirements that must be followed which affect the timing of the hearing. These requirements are implicated in only one of the consolidated cases, case No. 98-741 (Michael Hanrahan). Hanrahan’s hearing was held one day before his release from prison. The statutes explicitly provide the offender with due process rights including the right to notice of the date, time, and place of the hearing, and the right to testify, present evidence, and to call, examine, and cross-examine witnesses and expert witnesses. R.C. 2950.09(C)(2); 2950.09(B)(1). The trial court and the prosecutor acknowledged that the notice given Hanrahan on March 4 was not sufficient to enable him to exercise his right to present evidence and call witnesses at a hearing set for March 6.

R.C. 2950.03 requires that the offender be provided with notice, including information regarding registration duties, and including a statement as to whether the offender has been adjudicated as being a sexual predator. See R.C. 2950.03(A) and 2950.03(B)(1)(c). This notice must be provided by the appropriate official “at least ten days before the offender is released.” R.C. 2950.03(A)(1). As the offender cannot be adjudicated as being a sexual predator without a hearing, the hearing and determination must be completed at least ten days prior to the offender’s release in order for the appropriate officials to provide the required notice under the terms of the statute.

For the aforementioned reasons, we hold that a sexual predator hearing conducted pursuant to R.C. 2950.09(C)(2) must take place prior to the offender’s release from confinement and that the hearing must be scheduled far enough in advance of the offender’s release date to allow officials to satisfy their statutory notification duties under R.C. 2950.03(A)(1).

The judgments of the courts of appeals are affirmed.

Judgments affirmed.

Douglas, Resnick, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur. Cook, J., dissents.