THE STATE OF OHIO, APPELLANT, v. COOK, APPELLEE.
No. 97-1985
SUPREME COURT OF OHIO
September 30, 1998
83 Ohio St.3d 404 | 1998-Ohio-291
Submitted June 10, 1998 — APPEAL from the Court of Appeals for Allen County, No. 1-97-21.
R.C. 2950.09(B)(1) , as applied to conduct prior to the effective date of the statute, does not violate the Retroactivity Clause of Section 28, Article II of the Ohio Constitution.R.C. 2950.09(B)(1) , as applied to conduct prior to the effective date of the statute, does not violate the Ex Post Facto Clause of Section 10, Article I of the United States Constitution.
Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, David M. Gormley and Kathleen S. Peterson, Assistant Attorneys General; and David E. Bowers, Allen County Prosecuting Attorney, for appellant.
Brian M. Fisher, for appellee.
Gray & Duning and Donald E. Oda II, urging affirmance for amicus curiae, Ohio Association of Criminal Defense Lawyers.
David H. Bodiker, Ohio Public Defender, and Robert L. Lane, Chief Appellate Counsel, urging affirmance for amicus curiae, Ohio Public Defender.
Jeffrey M. Gamso and Joan M. Englund, urging affirmance for amicus curiae, American Civil Liberties Union of Ohio Foundation, Inc.
{¶ 1} On November 14, 1996, defendant-appellee, Tony Cook, was indicted on two counts of violating
{¶ 2} Defendant appealed from the trial court‘s finding, and the Allen County Court of Appeals reversed. The appellate court found that
{¶ 3} In addition, the court of appeals concluded that the trial court had improperly conducted the sexual predator determination hearing and sustained defendant‘s assignment of error on that issue. Accordingly, the appellate court reversed the trial court‘s finding that defendant was a sexual predator and remanded the cause for further proceedings.
{¶ 4} This cause is now before this court upon the allowance of a discretionary appeal.
I
HISTORY AND OVERVIEW
{¶ 6} In the summer of 1994, seven-year-old Megan Kanka was raped and murdered in Hamilton Township, New Jersey, by a convicted sex offender, Jesse Timmendequas, who had moved in with two other convicted child abusers across the street from the Kankas.1 Concerned citizens demanded legislation in New Jersey that would require community notification when a sex offender moves into the neighborhood. Three months later, on October 31, 1994, New Jersey Governor Christine Todd Whitman signed “Megan‘s Law,” a legislative package that included a provision for public notification.2
{¶ 7} Similar crimes resulted in so-called sex offender statutes on both the state and federal levels. A federal crime bill passed in 1994 included the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act,
{¶ 9} The General Assembly, in repealing and reenacting
{¶ 10} Further, the General Assembly declared that “[s]exual predators and habitual sex offenders pose a high risk of engaging in further offenses even after being released from imprisonment, a prison term, or other confinement and that protection of members of the public from sexual predators and habitual sex offenders is a paramount governmental interest.”
Classification Provisions of R.C. Chapter 2950
{¶ 11}
{¶ 12} In those cases where an offender is convicted of a violent sexually oriented offense and also of a specification alleging that he or she is a sexually violent predator, the sexual predator label attaches automatically.
{¶ 13} In making a determination as to whether an offender is a sexual predator, the judge must consider all relevant factors, including, but not limited to, all of the following: the offender‘s age; prior criminal record; the age of the victim of the sexually oriented offense; whether the sexually oriented offense involved multiple victims; whether the offender used drugs or alcohol to impair the victim or prevent the victim from resisting; if the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sex offenders; any mental illness or mental disability of the offender; the nature of the offender‘s sexual conduct with the victim and whether that contact was part of a demonstrated pattern of abuse; whether the offender, during commission of the offense, displayed cruelty or threatened cruelty; and any additional behavioral characteristics that contribute to the offender‘s conduct.
B
Registration and Address Verification Provisions of R.C. Chapter 2950
{¶ 15} The registration provision of
{¶ 16} Offenders must periodically verify their current home address.
{¶ 17} If the underlying offense was a felony, failure to comply with the registration and verification provisions is a felony.
Community Notification Provisions of R.C. Chapter 2950
{¶ 18} The final primary provision of
{¶ 19} The community notice must include the offender‘s name, the address at which the offender resides, the sexually oriented offense of which the offender was convicted, and a statement that the offender has been adjudicated as being a sexual predator or a habitual sex offender.
II
CONSTITUTIONALITY OF R.C. CHAPTER 2950
A
Presumption of Constitutionality
{¶ 20} Before we turn to the retroactivity and ex post facto analysis, we must note that 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.” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, 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. at 147, 57 O.O. at 137, 128 N.E.2d at 63. “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 Constitution.” Xenia v. Schmidt (1920), 101 Ohio St. 437, 130 N.E. 24, paragraph two of the syllabus; State ex rel. Durbin v. Smith (1921), 102 Ohio St. 591, 600, 133 N.E. 457, 460; Dickman, 164 Ohio St. at 147, 57 O.O. at 137, 128 N.E.2d at 63.
B
The Retroactivity Clause of the Ohio Constitution
{¶ 22} The court of appeals held that the application of
{¶ 23} First, we shall address the retroactivity of
{¶ 24} Statutes are presumed to apply only prospectively unless specifically made retroactive.
{¶ 25} First,
{¶ 26} Having determined that
{¶ 28} In order to determine whether
{¶ 29} Initially, we observe that many of the requirements contained in
{¶ 30} Amicus curiae, Ohio Public Defender, claims that the registration and notification provisions of
{¶ 32} In Matz, we noted that there are important public policy reasons for so holding. “For example, if [Matz‘s] theory were to prevail no person convicted of abusing children could be prevented from school employment by a later law excluding such persons from that employment.” Id. at 282, 525 N.E.2d at 808. This example became the subject of legislation when
{¶ 33} Under Van Fossen and Matz, we conclude that the registration and address verification provisions of
{¶ 35} Although generally the registration and address verification provisions of
{¶ 36} This court is not blind to the effects of the notification provisions of
{¶ 37} As to the dissemination of information regarding the offender‘s status, a conviction has always been public record. The General Assembly struck a balance between the privacy expectations of the offender and the paramount governmental interest in protecting members of the public from sex offenders. We cannot conclude that the Retroactivity Clause bans the compilation and dissemination of truthful information that will aid in public safety. In addition, this dissemination requirement imposes no burden on the defendant; the duty to notify the community applies only to the sheriff with whom the defendant has most recently registered.
C
The Ex Post Facto Clause of the United States Constitution
{¶ 39} Defendant argues that
{¶ 40}
“[A]ny statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, * * * is prohibited as ex post facto.” Id. at 169-170, 46 S.Ct. at 68, 70 L.Ed. at 217.
{¶ 41} The purpose of the Ex Post Facto Clause is to ensure that legislative acts “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham (1981), 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23. The clause also prevents the legislature from abusing its authority by enacting arbitrary or vindictive legislation aimed at disfavored groups. See Miller v. Florida (1987), 482 U.S. 423, 429, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 359.
{¶ 43} Courts have used the “intent-effects” test to delineate between civil and criminal statutes for the purposes of an ex post facto analysis of sex offender registration and notification statutes.4 See Roe v. Office of Adult Probation (C.A.2, 1997), 125 F.3d 47, 53-55; Russell v. Gregoire (C.A.9, 1997), 124 F.3d 1079; Doe v. Pataki (C.A.2, 1997), 120 F.3d 1263, 1274-1276. The “intent-effects” test was recently utilized by the United States Supreme Court in its ex post facto analysis of a Kansas statute permitting the state to institutionalize sexual predators with mental abnormalities or personality disorders that made it likely the offender would reoffend. Kansas v. Hendricks (1997), 521 U.S. 346, 353-369, 117 S.Ct. 2072, 2081-2085, 138 L.Ed.2d 501, 514-519. Accordingly, we apply the intent-effects test in this case.
{¶ 44} In applying the intent-effects test, this court must first determine whether the General Assembly, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other” and second, where the General Assembly “has indicated an intention to establish a civil penalty, * * * whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.” United States v. Ward (1980), 448 U.S. 242, 248-249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749.5
Intent of R.C. Chapter 2950
{¶ 45} In this prong of the analysis, we must determine whether the General Assembly‘s intent in promulgating
{¶ 46}
“(A) The General Assembly hereby determines and declares that it recognizes and finds all of the following:
“(1) If the public is provided adequate notice and information about sexual predators, habitual sex offenders, and certain other offenders who commit sexually oriented offenses, members of the public and communities can develop constructive plans to prepare themselves and their children for the sexual predator‘s, habitual sex offender‘s, or other offender‘s release from imprisonment * * *. This allows members of the public and communities to meet with members of law enforcement agencies to prepare and obtain information about the rights and responsibilities of the public and the communities and to provide education and counseling to their children.
“(2) Sexual predators and habitual sexual offenders pose a high risk of engaging in further offenses even after being released from imprisonment, * * * [and] protection of members of the public from sexual predators and habitual sex offenders is a paramount governmental interest.
” * * *
“(6) The release of information about sexual predators and habitual sex offenders to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems as long as the information released is rationally related to the furtherance of those goals.
“(B) The general assembly hereby declares that, in providing in this chapter for registration regarding sexual predators, habitual sexual offenders, and offenders who have committed sexually oriented offenses and for community notification regarding sexual predators and habitual sex offenders who are about to be or have been released from imprisonment * * * and who will live in or near a particular neighborhood or who otherwise will live in or near a particular neighborhood, it is the general assembly‘s intent to protect the safety and general welfare of the people of this state. The general assembly further declares that it is the policy of this state to require the exchange * * * of relevant information about sexual predators and habitual sex offenders among public agencies and officials and to authorize the release in accordance with this chapter of necessary and relevant information about sexual predators and habitual sex offenders to members of the general public as a means of assuring public protection and that the exchange or release of that information is
not punitive.” (Emphasis added.)
{¶ 47} This language reveals that the General Assembly‘s purpose behind
{¶ 48}
{¶ 49} This intent is further evidenced by the General Assembly‘s narrowly tailored attack on this problem. For example, the notification provisions apply automatically only to sexual predators or, at the court‘s discretion, to habitual sex offenders.
{¶ 50} Accordingly, we find that the General Assembly‘s intent with regard to
The “Effects” of R.C. Chapter 2950
{¶ 51} In determining whether a statute is punitive, a “civil label is not always dispositive.” Allen, 478 U.S. at 369, 106 S.Ct. at 2992, 92 L.Ed.2d at 304. However, only the clearest proof will be adequate to show that a statute has a punitive effect so as to negate a declared remedial intention. Id.; Flemming v. Nestor (1960), 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435, 1448.
{¶ 52} There is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a “matter of degree.” See Morales, 514 U.S. at 509, 115 S.Ct. at 1603, 131 L.Ed.2d at 597. However, the court in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, fashioned useful guideposts for determining whether a statute is punitive. These guideposts include “[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies
Disability or Restraint
{¶ 53}
{¶ 54}
{¶ 55} Accordingly, we find that
Historical Registration and Notification Requirements
{¶ 56} Registration has long been a valid regulatory technique with a remedial purpose. See, e.g., New York ex rel. Bryant v. Zimmerman (1928), 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184 (required registration of membership lists of corporations and associations permissible); Lambert v. California (1957), 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (city ordinance requiring all felons to register was a permissible law enforcement technique designed for the convenience of law enforcement agencies); United States v. Harriss (1954), 347 U.S. 612, 74 S.Ct. 808, 9 L.Ed. 989 (required registration of lobbyists).
{¶ 57} Similarly,
{¶ 58} History does not tell us whether this sort of notification ought to be regarded as punishment. Russell, 124 F.3d at 1091. Thus, we must draw an analogy.
{¶ 59} Public access is an integral part of our legal system, “which necessarily entail[s] public dissemination of information about the alleged activities of the accused.” E.B. v. Verniero (C.A.3, 1997), 119 F.3d 1077, 1100. Dissemination of such information is obviously detrimental to the reputation of the defendant, who is presumed innocent until proven guilty. But, “dissemination of such information in and of itself, however, has never been regarded as punishment when done in furtherance of a legitimate governmental interest.” Id. at 1099-1100. This is because, absent compelling circumstances combined with a narrowly tailored remedy, common law and the First Amendment dictate that criminal trials are open to the public. See Globe Newspaper Co. v. Norfolk Cty. Superior Court (1982), 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248. Public access is necessary because “[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and society as a whole.” Id. at 606, 102 S.Ct. at 2619, 73 L.Ed.2d at 256. In other
{¶ 60} By way of analogy, we find that this right to public access provides historical support for the notification provisions in
{¶ 61} Accordingly, we find that the registration and notification provisions of
Element of Scienter
{¶ 62} There is no scienter requirement indicated in
{¶ 63} Accordingly, we find that
Retribution and Deterrence
{¶ 64} Amicus curiae, Ohio Association of Criminal Defense Lawyers, argues that “the form and effect of [R.C. Chapter 2950] embraces [sic] the traditional notions of punishment, including retribution and deterrence.” We disagree.
{¶ 65} In Artway v. New Jersey Atty. Gen., 81 F.3d at 1255, the court stated:
“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, for instance by removing the likely perpetrators of future corruption * * * .” Id. at 1255.
{¶ 66} The registration and notification provisions of
{¶ 67} Further,
{¶ 68} Accordingly, we find that
Criminal Behavior
{¶ 69} Even prior to the promulgation of the current version of
Alternate Remedial Purpose
{¶ 71} As we have discussed,
{¶ 72} Many federal courts considering similar registration and notification provisions for released sex offenders have echoed these conclusions and upheld similar statutes and provisions. See, e.g., Doe v. Pataki, 120 F.3d at 1263; Artway, 81 F.3d at 1264-1265; Doe v. Kelley (W.D.Mich.1997), 961 F.Supp. 1105, 1109; Doe v. Weld (D.Mass.1996), 954 F.Supp. 425, 434-436; Roe v. Office of Adult Probation, 125 F.3d at 47; and Russell, 124 F.3d 1079, 1087-1088.
{¶ 73} Accordingly, we find that there is an alternate purpose, which may be rationally assigned to
Excessiveness in Relation to Alternate Purpose
{¶ 74} Offenders must supply only their names, addresses, business addresses, photographs, fingerprints, and, in some instances, license plate numbers, and a statement disclosing that they have been adjudicated a sexual predator or habitual sex offender.
{¶ 75} The defendant argues that the lifetime address verification requirement for sexual predators is onerous.
{¶ 76} Similarly, address verification for habitual sex offenders and sexually oriented offenders is commensurate with the level of recidivism and dangerousness of these respective classifications. Habitual sex offenders must verify registration annually for twenty years, while sexually oriented offenders must verify annually for ten years.
{¶ 77} Thus, we find that the address verification requirements of
{¶ 78} The defendant asserts that the notification provisions of
{¶ 79} Finally, the registration/notification provisions of
{¶ 80} In Hendricks, the Kansas statute allowed an offender to be involuntarily committed as a “sexually violent predator,” which was defined as ” ‘any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ ” (Emphasis added.) Id., 521 U.S. at ___, 117 S.Ct. at 2077, 138 L.Ed.2d. at 509, quoting Kan. Stat. Ann. 59-29a02(a). Pursuant to
{¶ 81} Further, the statute in Hendricks permitted the state to commit prior offenders, i.e., to require them to forfeit their freedom. Certainly, loss of liberty, albeit through a civil commitment proceeding, is more akin to punishment than a requirement that offenders register and officials disseminate cautionary information about the offender to a narrow spectrum of the public and law enforcement officials. Yet, Hendricks determined that commitment in this context was not punishment pursuant to ex post facto analysis because the confinement of mentally unstable
{¶ 82} In conclusion, the guidelines set forth in Kennedy, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, while neither exhaustive nor dispositive, indicate that
III
SEXUAL PREDATOR DETERMINATION HEARING
{¶ 83}
{¶ 84}
” ‘Sexual predator’ means a person who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses.”
{¶ 85} As stated above, the General Assembly established criteria in
{¶ 86} At the change-of-plea hearing on January 9, 1997, the trial judge informed the defendant in great detail of the new statute, which had just become effective eight days earlier on January 1, 1997. The judge stated the three classifications, outlined the registration and verification requirements, and explained that the failure to register and/or verify may be a felony. The judge also reviewed the specific facts of the count to which the defendant was pleading guilty. After accepting the plea, the judge informed both parties of the time and date of the sentencing and sexual predator hearing.
{¶ 87} On February 14, 1997, the trial court held a sentencing hearing and made the determination that the defendant was a sexual predator. As part of the negotiated plea agreement, the state agreed to remain silent as to a sentencing recommendation. The trial court noted that it had in its possession the presentence investigation report as well as the victim impact statement. Defense counsel informed the court that his client had “a problem and he‘s had it for a long time”
{¶ 88} The trial judge, in reviewing the presentence investigation report, observed that the defendant was involved in an act of sexual contact with a girl in Florida in September 1995. Further, the judge considered the defendant‘s July 13, 1996 plea of guilty to disorderly conduct, which also involved sexual contact with a six-year-old and an eight-year-old. The judge noted that the current gross sexual imposition conviction stemmed from an offense occurring on July 16, 1997, just three days after his plea to another crime involving sexual contact with children. The trial judge also noted defendant‘s lengthy prior criminal history, drug and alcohol problems, and recent participation in several sexually oriented offenses.
{¶ 89} Based upon the presentence investigation report and the information supplied in court, the judge sentenced the defendant to two years’ imprisonment and restitution to the victim for counseling expenses. The trial court further found the defendant to be a sexual predator and ordered the defendant to comply with the registration and verification requirements of
{¶ 90} The appellate court determined that the trial court erred in conducting the defendant‘s sexual predator determination hearing.7 One basis for the appellate court‘s decision was the determination that the trial court relied on a presentence investigation report that constituted hearsay. We disagree. Evid.R.
{¶ 91} We find that while this may not have been a model determination hearing, it was not so prejudicial so as to require a remand. When asked by defense counsel the basis for finding defendant a sexual predator, the court referred to the following: (1) the factors listed in the statute; (2) the defendant‘s prior sexually oriented offenses; (3) defendant‘s criminal conduct; and (4) defendant‘s past criminal record.
{¶ 92} Although the court of appeals determined that the defendant was not given access to the presentence investigation report, that conclusion is not supported in the record. Pursuant to
{¶ 93} Defense counsel presented additional statements such as his client‘s criminal history, use of alcohol, and need for assistance. Defense counsel never
{¶ 94} While defense counsel differed with the judge over the treatment of a disorderly conduct charge, he did not object to the trial judge‘s reliance on the presentence report. Accordingly, the defendant has waived all but plain error. State v. Nicholas (1993), 66 Ohio St.3d 431, 435-436, 613 N.E.2d 225, 229.
{¶ 95} Our review of the record persuades us that the defendant had a fair hearing, that he was ably represented by competent counsel, and that the court considered the criteria under
{¶ 96} “Sexual predator” is defined in
CONCLUSION
{¶ 97} We hold that
{¶ 98} Accordingly, we reverse the judgment of the court of appeals and reinstate the trial court‘s determination that the defendant is a sexual predator pursuant to
Judgment reversed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.