State v. ConsilioState v. Consilio
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- Before:
- Connor
Lead Opinion
I
{¶ 1} This appeal presents the issue whether
{¶ 2} On August 6, 2002, appellee, Craig Consilio, pleaded guilty to driving under the influence of alcohol or drugs, a fourth-degree felony, and was sentenced to six months’ incarceration and a $500 fine. Consilio received judicial release on January 10, 2003. As part of this release, he was placed on community control for three years. In May 2005, the Summit County Court of Common Pleas Probation Office informed Consilio that he was required to provide the probation office with a DNA specimen pursuant to the version of
{¶ 3} Consilio challenged this requirement in a motion in opposition filed on May 27, 2005. He argued that the amended statute did not apply to him, because it was not in effect when he was sentenced to community control. The trial court denied the motion on June 6, 2005, finding that amended
{¶ 5} We accepted jurisdiction on the state’s appeal. For the following reasons, we affirm the judgment of the court of appeals.
II
{¶ 6} As a preliminary matter, the parties argue that this case may be moot as to Consilio, given that the 126th General Assembly amended
{¶ 7} While we abide by that principle, a case is not moot if an actual controversy remains between the litigants. See State ex rel. Plain Dealer v. Ohio Dept. of Ins. (1997), 80 Ohio St.3d 513, 517-518, 687 N.E.2d 661. The action underlying this case concerned whether Consilio was required to submit a DNA specimen under the HB 525 version of
III
A
{¶ 8} We are asked to determine whether the HB 525 version of
{¶ 10} 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, 772 N.E.2d 1172, citing Van Fossen, 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraphs one and two of the syllabus. The General Assembly’s failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively. Id. If a statute is clearly retroactive, though, the reviewing court must then determine whether it is substantive or remedial in nature. LaSalle at 181, 772 N.E.2d 1172.
B
{¶ 11} Given this two-part test, we must first determine whether the statute was expressly made retroactive. The subsection at issue in this matter,
{¶ 12} “(3)(a) If a person is convicted of or pleads guilty to a felony offense or a misdemeanor offense listed in division (D) of this section and the person is on probation, released on parole, under transitional control, on community control, on post-release control, or under any other type of supervised release under the supervision of a probation department or the adult parole authority, the person shall submit to a DNA specimen collection procedure administered by the chief administrative officer of the probation department or the adult parole authority.”
{¶ 13} The state argues that the statute was intended to apply to all individuals who were convicted of or who pleaded guilty to a felony or a specified misdemeanor and who were on supervised release on or after May 18, 2005, even if the conviction or guilty plea had occurred before that date. To support this position, the state notes that the statute is written in the present tense and applies to a defendant who “is convicted” or “pleads guilty” and “is” on a form of supervised release. The state suggests that this language can mean only that the General Assembly intended for the statute to be applied to individuals on supervised
{¶ 14} The state also cites the SB 262 version of the statute, which took effect on July 11, 2006. This newest version added language to
{¶ 15} We disagree. A statute must clearly proclaim its own retroactivity to overcome the presumption of prospective application. Retroactivity is not to be inferred. Kelley v. State (1916), 94 Ohio St. 331, 338-339, 114 N.E. 255. If the retroactivity of a statute is not expressly stated in plain terms, the presumption in favor of prospective application controls. Bernier v. Becker (1881), 37 Ohio St. 72, 74. Moreover, the General Assembly is presumed to know that it must include expressly retroactive language to create that effect, and it has done so in the past.3
{¶ 16} It is undisputed that the HB 525 version of
{¶ 17} The mere use of present-tense language does not change this conclusion. The state is correct that the statute may be read to cover all individuals on supervised release on the effective date of the statute, given the use of the present tense. However, one can also read the use of the present tense to mean that effective May 18, 2005, any individual who is convicted of or pleads guilty to a qualifying offense and who is then placed on supervised release must submit a DNA specimen. “A statute, employing operative language in the present tense, does not purport to cover past events of a similar nature.” See Smith v. Ohio Valley Ins. Co. (1971), 27 Ohio St.2d 268, 276, 56 O.O.2d 160, 272 N.E.2d 131. Absent more express evidence of retroactivity, the general presumption of prospective application controls.
{¶ 18} This conclusion is further supported by the fact that the General Assembly specifically amended this statute in 2006 via SB 262. The new version
{¶ 19} In addition to these changes to the text of the statute, uncodified Section 3(C) of SB 262 notes that the changes were made so that the General Assembly could “expressly state[ ] its intent that the amendments to
{¶ 20} If the HB 525 version were retroactive, it would have been unnecessary for the General Assembly to add this new language to the statute and the statement of intent to the uncodified text. Regardless of whether the General Assembly believed that the HB 525 version was retroactive,4 it declares in the uncodified Section 3(C) of SB 262 that it specifically amended the statute so that it would comply with the requirements for retroactivity.
{¶ 21} Beyond these reasons for not applying
{¶ 22} The inclusion of this term certainly suggests that the General Assembly intended to make the statute retroactive. However, its presence does not make the statute clearly retroactive. The distinction is a fine yet extremely important one.
{¶ 23} The Constitution requires the General Assembly to write statutes in such a way that people of common intelligence may understand what conduct is required. See State v. Williams (2000), 88 Ohio St.3d 513, 532, 728 N.E.2d 342. Requiring the General Assembly to clearly enunciate its intent in plain terms allows casual readers of the law to immediately know what statutes are retroactive. Allowing a statute to become retroactive through a reference to a defunct
{¶ 24} It should be noted that neither the state nor Consilio raised the inclusion of “probation” as a justification for retroactivity. On a day-to-day basis, such litigants work with statutes such as
IV
{¶ 25} Because the HB 525 version of
{¶ 26} Because Consilio pleaded guilty and was sentenced to supervised release before May 18, 2005, he is not required to submit to the DNA specimen collection procedure pursuant to the HB 525 version of the statute. All individuals not covered by the previous list of enumerated felonies that were sentenced to supervised release before May 18, 2005, and that completed this supervision before July 11, 2006, are similarly exempted.
{¶ 27} The judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
Pfeifer and O’Donnell, JJ., concur. Cupp, J., concurs in syllabus and judgment only. Lundberg Stratton, O’Connor and Lanzinger, JJ., dissent.Notes
. The terms “retroactive” and “retrospective” may be used interchangeably to mean “a law that is ‘made to affect acts or facts occurring, or rights accruing, before it came into force.’ ” Bielat v. Bielat (2000), 87 Ohio St.3d 350, 353, 721 N.E.2d 28, quoting Black’s Law Dictionary (6th Ed.1990) 1317. For the sake of consistency, only the word “retroactive” is used in this opinion.
. As amended by HB 525,
. See, e.g., Van Fossen, 36 Ohio St.3d at 103, 522 N.E.2d 489, quoting then
. In the uneodified Section 3(A) of SB 262, the General Assembly stated that its purpose in amending
Dissenting Opinion
dissenting.
{¶ 28} I respectfully dissent. In rejecting the state’s arguments, the majority holds that unless the General Assembly “proclaim[s]” that a statute is retroactive “in plain terms,” a statute is conclusively prospective. Such a holding suggests that a formalistic recitation will now be the only evidence of the General Assembly’s intent on retroactivity, and an examination of the legislation as a whole to determine intent is no longer possible. This is contrary to the long
{¶ 29} In my view, former
{¶ 30} The General Assembly particularly listed all individuals required to submit DNA specimens if there has been a conviction or plea to a felony or specified misdemeanor. The listed individuals are those “on probation,” those under community control, parole, transitional control, and post-release control, and those under “any other type of supervised release.”
{¶ 31} The majority’s interpretation is wrong for two reasons. First, a prospective application nullifies the General Assembly’s use of the word “probation.” The General Assembly had abolished the felony sentence of probation and replaced it with community control5 on July 1, 1996, well before the enactment of the HB 525 version of
{¶ 32} Second,
{¶ 33} The majority rejects this statement by concluding that the new language did not clarify, but instead added, the missing retroactive intent. As noted, HB 525, which enacted the former statutory version, was already expressly retroactive. By inserting “[rjegardless of when the conviction occurred or the guilty plea was entered,” the amendment to
I
{¶ 34} My reading that former
{¶ 35} A retroactive statute is substantive — and therefore unconstitutionally retroactive — if it impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction. Id. at 411, 700 N.E.2d 570. Remedial laws have been defined as those that simply provide “a rule of practice, a course of procedure or a method of review.” Miami Cty. v. Dayton (1915), 92 Ohio St. 215, 219, 110 N.E. 726.
{¶ 36} The state properly relies on State ex rel. Matz v. Brown (1988), 37 Ohio St.3d 279, 281, 525 N.E.2d 805, to demonstrate that former
{¶ 37} The HB 525 version of
{¶ 38} Consilio has alleged no impairment of rights or imposition of new obligations that would satisfy the tests for substantive legislation. He had no expectation of finality, as “felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation.” Matz, 37 Ohio St.3d at 282, 525 N.E.2d 805. Furthermore, former
{¶ 39} I conclude that the HB 525 version of
II
{¶ 40} In summary, I would reverse the judgment of the Court of Appeals for Cuyahoga County. I would hold that the earlier version of
. “Community control” has replaced “probation” for misdemeanor offenses also. See