State v. CurdState v. Curd
Civil Appeal from the Lake County Court of Common Pleas, Case No. 08 MS 000028.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Paul A. Mancino Jr., Mancino, Mancino & Mancino, 75 Public Square, #1016, Cleveland, OH 44113 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.,
{¶1} Appellant, Christopher Curd, appeals from the judgment entry of the Lake County Court of Common Pleas reclassifying him from a sexually oriented offender to a Tier III Sex Offender as required by Am. Sub. Senate Bill 10 (a.k.a. the Adam Walsh Act). For the reasons discussed in this opinion, the trial court’s judgment is affirmed.
{¶2} In 2002, appellant pleaded guilty to one count of rape, a felony of the first degree, in violation of
{¶3} In January of 2008, appellant was notified he had been reclassified as a Tier III Sex Offender under S.B. 10. A Tier III classification is the highest tier and, similar to the old sexual predator finding, requires registration every 90 days for life, and the community notification may occur every 90 days for life. See
{¶4} Appellant subsequently filed a petition to contest his reclassification asserting various violations of his constitutional rights. The state responded to appellant’s petition and a hearing was held on March 13, 2008. After the hearing, the trial court concluded that appellant had not proved by clear and convincing evidence that the new registration requirements did not apply to him. See
{¶5} Appellant filed a motion to stay the community notification pending a ruling by the Ohio Supreme Court on the constitutionality of S.B. 10. The trial court denied the motion. Appellant filed his notice of appeal and subsequently moved this court to stay the notification which was granted yet subsequently dissolved.
{¶6} Appellant now raises two assignments of error challenging the legality of his reclassification. For his first assignment of error, appellant contends:
{¶7} “A defendant has been denied due process of law when an executor [sic] overruled a prior judicial determination in violation of the constitutional separation of powers doctrine.”
{¶9} An issue or point of law has been formerly and finally adjudicated pursuant to res judicata where it “*** was actually and directly in issue in the former action, and was there passed upon and determined by a court of competent jurisdiction ***.” Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493, at syllabus. Res judicata has the effect of precluding a party, or a person in privity with him or her, from later relitigating the identical issue adjudicated in the prior judgment. Id.
{¶10} Appellant argues that because the issue of his classification was previously determined under the former statute, the matter is res judicata and cannot be revisited, regardless of the enactment of the new statute. Appellant is wrong.
{¶11} Appellant was formerly classified under a now defunct statutory scheme. The current classification scheme is both procedurally and substantively different than the scheme under which he was previously classified. Thus, because the current scheme did not exist at the time appellant was labeled a “sexually oriented offender,” appellant’s new classification as a “Tier III” Offender was never directly in issue. By definition, res judicata does not bar appellant’s reclassification.
{¶12} Next, appellant asserts S.B. 10 violates the doctrine of separation of powers and is therefore unconstitutional.
{¶13} Before embarking on our analysis, we point out that appellant’s first and second assignments of error assert various arguments relating to the constitutionality of S.B. 10. It is worth noting that each appellate district in Ohio, including this one, has concluded that S.B. 10 passes constitutional muster. See State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059;
{¶14} With this backdrop in mind, we shall proceed with an analysis of appellant’s separation of powers argument. Appellant’s argument asserts that S.B. 10 is unconstitutional because it violates the doctrine of separation of powers by allocating to the Ohio Attorney General the power to reclassify him as a Tier III Offender and thereby nullify a former, and otherwise valid, judgment of a court of law.
{¶15} “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, paragraph one of the syllabus.
{¶16} Initially, any argument related to separation of powers must relate to the Legislative branch overstepping its authority, not the Executive branch. The General Assembly was the body of government that enacted the legislation at issue and thus is the branch of government responsible for appellant’s reclassification. The fact that an
{¶17} Accordingly, the real constitutional question is whether the legislature’s enactment stands in violation of the doctrine of separation of powers. We have previously answered this question in the negative. Swank, supra, at ¶98-100.
{¶18} However, for purposes of emphasis, we shall now expand upon our holding in Swank. We first point out that, while S.B. 10 authorizes the Ohio Attorney General to reclassify offenders previously classified under H.B. 180, see
{¶19} While there is no doubt that a judicial determination of a sex offender’s classification under H.B. 180 is a final judgment for purposes of appeal, State v. Washington, 11th Dist. No. 99-L-015, 2001-Ohio-8905, 2001 Ohio App. LEXIS 4980, *9, such a judgment does not deprive the legislature of its constitutional authority to classify sex offenders.
{¶20} “[T]he classification of sex offenders into categories has always been a legislative mandate, not an inherent power of the courts. *** Without the legislature’s creation of sex offender classifications, no such classification would be warranted. Therefore, *** we cannot find that sex offender classification is anything other than a creation of the legislature, and therefore, the power to classify is properly expanded or limited by the legislature.” In re Smith, supra, at ¶39.
{¶22} Finally, in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, the Ohio Supreme Court held that an offender’s classification as a sexual predator is merely a “collateral consequence of the offender’s criminal acts rather than a form of punishment per se.” Id. at 14. In that case, the Court concluded the offender had “not established that he had any reasonable expectation of finality in [such] a collateral consequence
{¶23} The new registration and notification scheme does not violate the doctrine of separation of powers and, as a result, we reaffirm our conclusion in Swank.
{¶24} Appellant’s first assignment of error is without merit.
{¶25} Appellant’s second assignment of error asserts:
{¶26} “A defendant has been denied his constitutional rights when the court applied Ohio’s Adam Walsh Act to defendant in an unconstitutional manner.”
{¶27} Under this assignment of error, appellant argues S.B. 10 violates; (1) the constitutional prohibition against ex post facto laws; (2) the protection against retroactive legislation; (3) the constitutional protection prohibiting double jeopardy; and (4) due process of law. Similar to appellant’s separation of powers argument, the balance of these constitutional arguments has been considered and rejected by this court in Swank. Id. at ¶71-89 (ex post facto); ¶90-97 (retroactive legislation); ¶101-111 (due process of law). By operation of stare decisis, appellant’s arguments are therefore overruled. However, since our holding in Swank, litigants, particularly those who have experienced a reclassification such as appellant, have further developed their positions. As with appellant’s separation of powers challenge, we shall revisit the arguments
{¶28} All of Ohio’s appellate districts, including this court, have relied on the Supreme Court of Ohio’s decision in Cook, supra, as a foundation for upholding the constitutionality of S.B. 10. In Cook, the Court addressed H.B. 180, the statutory predecessor of S.B. 10. The Court held that, although H.B. 180 was retroactive, the purpose of its registration and notification requirements was to protect the public from released sex offenders. The Court in Cook held that because H.B. 180 was remedial and not punitive in nature, it did not present an ex post facto or retroactivity violation. Id. at 413, 423.
{¶29} Since the Ohio Supreme Court’s ruling in Cook, the Court has reaffirmed its holding that
{¶30} In State v. Williams, 88 Ohio St.3d 513, 2000-Ohio-428, the defendant alleged that H.B. 180 violated the Double Jeopardy Clause because it inflicted a second punishment for a single offense. Relying on its reasoning in Cook, the Supreme Court reaffirmed that
{¶31} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, the Court held:
{¶32} “Consistent with our jurisprudence in [Cook and Williams], we find that the sex-offender-classification proceedings under
{¶34} Ferguson had been convicted of rape and kidnapping in 1990. In 2006, the trial court classified Ferguson as a sexual predator.
{¶35} Ferguson challenged three amendments in S.B.5. First, he challenged former
{¶36} Second, Ferguson challenged former
{¶37} Third, Ferguson challenged amended
{¶38} In Ferguson, the Supreme Court (O‘Connor, J. writing for the majority) held:
{¶40} “***
{¶41} “As an initial matter, we observe that an offender’s classification as a sexual predator is a collateral consequence of the offender’s criminal acts rather than a form of punishment per se. Ferguson has not established that he had any reasonable expectation of finality in a collateral consequence that might be removed. *** Absent such an expectation, there is no violation of Ohio’s retroactivity clause.
{¶42} “***
{¶43} “We conclude that the General Assembly‘s purpose for requiring the dissemination of an offender’s information is the belief that education and notification will help inform the public so that it can protect itself. ‘Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” (Emphasis added and internal citations omitted.) Id. at 14-16, quoting Smith v. Doe (2003), 538 U.S. 84, 99.
{¶44} Also, the Ferguson Court held that the lifetime classification imposed on sexual predators as well as the more burdensome registration requirements and the collection and internet dissemination of additional information about the offender as part of the statute’s notification provisions were part of a remedial, regulatory scheme designed to protect the public rather than to punish the offender. Id. at 15.
{¶46} The Alaska act contained registration and notification requirements that were expressly made retroactive. Under the act, the offender was required to register with local law enforcement authorities and in so doing to provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver’s license number, information about vehicles to which he has access, and his postconviction medical treatment history. He was also required to permit authorities to photograph and fingerprint him. The nonconfidential information was made available on the internet.
{¶47} Under the Alaska statute, if the offender was convicted of a nonaggravated sex offense, he was required to provide annual registration for 15 years. In contrast, if he was convicted of an aggravated sex offense, he was required to register quarterly for life. Thus, the frequency and length of registration was based solely on the type of offense of which he was convicted, rather than any finding concerning the likelihood that the offender would reoffend. Further, if a sex offender failed to comply with the act, he was subject to criminal prosecution.
{¶48} The convicted sex offenders in Smith filed an action in the district court seeking a declaration that the Alaska act violated the Ex Post Facto Clause of the Federal Constitution. The district court entered summary judgment in favor of the state. The Ninth Circuit held the act violated the Ex Post Facto Clause because, although the
{¶49} In reversing the decision of the Ninth Circuit, the United States Supreme Court held the intent of the act was remedial and not punitive. In arriving at this holding, the Supreme Court considered various factors. First, it considered the legislative purpose set forth in Alaska’s act. The Court held: “Because we ‘ordinarily defer to the legislature’s stated intent,’ [Kansas v.] Hendricks, [521 U.S. 346], 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 [United States v.] Ward, [448 U.S. 242,] at 249 ***.” Id. at 92.
{¶50} The Supreme Court noted that the Alaska Legislature expressed its intent in the statute. It found ‘“sex offenders pose a high risk of reoffending,‘” and stated that ‘“protecting the public from sex offenders‘” is the ‘“primary governmental interest‘” of the law. Smith, supra, at 93, quoting 1194 Alaska Sess. Laws Ch.41. The legislature found the ‘“release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety.‘” Id. We note the legislative intention set forth in S.B.10 is virtually identical to that expressed in the Alaska legislation.
{¶51} The Supreme Court held the imposition of restrictive measures on sex offenders is a legitimate nonpunitive governmental objective, and that nothing on the face of the statute suggests the legislature sought to create anything other than a civil scheme to protect the public from harm. Id.
{¶53} The Supreme Court also addressed the Alaska statute’s requirement that the judgment of conviction for sex offenses “‘set out the requirements of [the Act] and *** whether that conviction will require the offender to register for life or a lesser period.‘” Id. at 95. The Court held:
{¶54} “The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences themselves punitive. When a State sets up a regulatory scheme, it is logical to provide those persons subject to it with clear and unambiguous notice of the requirements and the penalties for noncompliance. The Act requires registration either before the offender‘s release from confinement or within a day of his conviction (if the offender is not imprisoned). Timely and adequate notice serves to apprise individuals of their responsibilities and to ensure compliance with the regulatory scheme. Notice is important, for the scheme is enforced by criminal penalties. See [Secs.] 11.56.835, 11.56.840. Although other methods of notification may be available, it is effective to make it part of the plea colloquy or the judgment of
{¶55} As with the Alaska statute, S.B. 10 requires the judge to notify the offender of his registration duties at the time of sentencing. Based upon the United States Supreme Court’s holding in Smith, this does not render S.B. 10’s regulatory system punitive.
{¶56} After determining that Alaska’s act was not punitive in intent, the Court in Smith considered whether the act was punitive in effect. In analyzing the effects of a statute for purposes of determining whether it is an ex post facto law, courts refer to the factors noted in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169.
{¶57} First, the Supreme Court considered whether the regulatory scheme has traditionally been regarded as a punishment. The Court noted that the sex offender registration statutes are of recent origin, which suggests “it did not involve a traditional means of punishing.” Id. at 97. The Supreme Court further held that early punishments, such as shaming or banishment, always involved more than the dissemination of information. Id. at 98. They either held the offender up before his fellow citizens for face to face shaming or expelled him from the community. Id. The Court held: “By contrast, the stigma of Alaska’s Megan’s Law results *** from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat the dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Id.
{¶58} Moreover, the Court held the fact that Alaska posts the offender’s information on the internet does not alter its decision. The Court held:
{¶60} “The State‘s Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety’s Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska‘s citizenry.” Smith, supra, at 99.
{¶61} Second, the Supreme Court held Alaska’s act imposes no disability or restraint. The Court held that because the act does not impose a physical restraint, it does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. Id. at 100. The Court held the statute’s obligations are less harsh than the sanction of “occupational debarment,” which the Court has held to be nonpunitive. Id.
{¶63} “*** Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. *** By contrast, offenders subject to the Alaska statute are free to move where they wish *** with no supervision. Although registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual‘s original offense. *** [T]he registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause.” (Internal citations omitted.) Id. at 101-102.
{¶64} Third, the Court rejected the argument that the statute’s deterrent quality renders it punitive since deterrence is one purpose of punishment. The Court held: “This proves too much. Any number of governmental programs might deter crime without imposing punishment. ‘To hold that the mere presence of a deterrent purpose renders such sanctions “criminal” . . . would severely undermine the Government’s ability to engage in effective regulation.’” Id. at 102, quoting Hudson, supra, at 105.
{¶65} Fourth, the Court held the Act’s rational connection to a nonpunitive purpose was the “most significant” factor in its determination that the statute’s effects are not punitive. The Court held the act has a legitimate, nonpunitive purpose of public
{¶66} Fifth, the Court held the act was not excessive even though it applies to all convicted sex offenders without regard to the likelihood that they would reoffend in the future. The United States Supreme Court held:
{¶67} “Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is ‘frightening and high.’ McKune v. Lile, 536 U.S. 24, 34 (2002); see also id., at 33 (‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault‘) (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997)).
{¶68} “The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. *** The State’s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.
{¶69} “*** In the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on
{¶70} The Supreme Court’s analysis of this factor therefore defeats the argument that S.B. 10 is unconstitutional because its classification system is based solely on the type of crime committed by the offender.
{¶71} The Supreme Court also rejected the argument that the Act was excessive in that it places no limit on the number of persons who have access to the offender’s information. The Court held:
{¶72} “[T]he notification system is a passive one: An individual must seek access to the information. The Web site warns that the use of displayed information “to commit a criminal act against another person is subject to criminal prosecution. Given the general mobility of our population, for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment. ***” Id. at 105.
{¶73} Post-Smith, federal appellate courts have repeatedly held that SORNA does not violate the Ex Post Facto Clause of the United States Constitution. Since S.B. 10 places Ohio law in conformity with the federal SORNA, decisions of federal appellate courts considering the federal act are strongly persuasive in considering challenges to S.B. 10.
{¶74} In United States v. May (C.A. 8, 2008), 535 F.3d 912, the Eighth Circuit applied Smith in holding SORNA does not violate the Ex Post Facto Clause. The court held that Congress’ stated intent was to protect the public from sex offenders by enacting a regulatory scheme that is “civil and nonpunitive.” Id. at 920. In concluding
{¶75} “The only punishment that can arise under SORNA comes from a violation of [Sec.] 2250, which punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA and who fail to register as required by SORNA. Congress clearly intended SORNA to apply to persons convicted before the Act‘s passage. *** If SORNA did not apply to previously convicted sex offenders, SORNA would not serve Congress’ stated purpose of establishing a ‘comprehensive national system’ for sex offender registration. Section 16901. *** Section 2250 punishes an individual for traveling in interstate commerce and failing to register. The statute does not punish an individual for previously being convicted of a sex crime. *** Thus, prosecuting May under [Sec.] 2250 is not retrospective and does not violate the ex post facto clause.” (Emphasis added.) May, supra, at 920.
{¶76} In United States v. Hinckley (C.A. 10, 2008), 550 F.3d 926, the Tenth Circuit adopted the reasoning of May, and held that neither SORNA’s registration requirements nor the criminal penalties attached to non-compliance in Sec. 2250 violate the Ex Post Facto Clause. Relying on Smith, supra, the court held that the legislative intent expressed in SORNA’s preamble and SORNA’s primary effect satisfy the requirements of the Ex Post Facto Clause. Id. at 936.
{¶77} In Hinckley the defendant attempted to distinguish the regulatory scheme in Smith from the federal SORNA. The defendant argued the Smith scheme was primarily civil in nature, and, unlike SORNA, did not require internet dissemination of offenders’ information, did not establish a community notification program, did not
{¶78} Moreover, the court in Hinckley pointed out that SORNA, just as Alaska’s regulatory scheme in Smith, merely provides for the “dissemination of accurate information about a criminal record, most of which is already public.’” Hinckley, quoting Smith, supra, at 98. The Hinckley, supra, court held that while the public display of information may result in humiliation for the registrant, it is not an ‘“integral part of the objective of the regulatory scheme.’” Hinckley, quoting Smith, supra, at 99. To the contrary, the court in Hinckley held that SORNA aims to “inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” Hinckley, supra, at 938. The court held the primary effect of the act supports Congress’ intent that the statute operate as a civil, regulatory scheme.
{¶80} In United States v. Ambert (C.A. 11, 2009), 561 F.3d 1202, the Eleventh Circuit also held that SORNA did not violate protections against ex post facto laws. The court held that SORNA does not “impose a retroactive duty to register for prior convicted sex offenders or punish a defendant for actions that occurred prior to February 28, 2007[, the date the Attorney General determined the act was retroactive].” Id. at 1207. The court held that SORNA imposed a duty to register beginning on the date of the Attorney General’s retroactivity determination. Id. The court further held a violation of the act only occurs thereafter when a defendant fails to register after the date the statute became applicable. Id.
{¶81} Also, in United States v. Samuels (Apr. 2, 2009), 6th Cir. No. 08-5537, 2009 U.S. App. LEXIS 7084, the Sixth Circuit, relying on Smith and May, held SORNA presented no ex post facto violation. The court observed the intent and effects of SORNA are non-punitive and, moreover, SORNA only criminalizes behavior occurring after the enactment of the statute itself. Samuels, supra, at *11-*13. See, also, United States v. Gould (C.A. 4, 2009), 568 F.3d 459 (released June 18, 2009).
{¶82} Even though many of the cases outlined above do not directly address S.B. 10, the qualitative components of the schemes these cases addressed are
{¶83} We also reaffirm our previous conclusion that S.B. 10 does not violate Ohio’s constitutional protection against retroactive legislation.
{¶84} Finally, our opinion in Swank did not specifically address the Double Jeopardy argument; however, one can easily deduce from the substantive conclusions this court drew in Swank, as well as additional analysis of this opinion, S.B. 10 does not violate constitutional protections against Double Jeopardy.
{¶85} “The Double Jeopardy Clause states that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” State v. Williams, 88 Ohio St.3d 513, 527-528, 2000-Ohio-428, citing the
{¶86} As discussed at length in Swank as well as in this opinion, S.B. 10 is non-punitive and therefore does not violate constitutional protections against double jeopardy.1
{¶87} Appellant’s second assignment of error is without merit.
{¶88} For the reasons discussed in this opinion, appellant’s two assignments of error are without merit. The judgment entry of the Lake County Court of Common Pleas is therefore affirmed.
MARY JANE TRAPP, P.J., concurs with Concurring Opinion,
COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.
MARY JANE TRAPP, P.J., concurs with Concurring Opinion.
{¶89} The appellant’s ex post facto and retroactive claims are rejected based on the Supreme Court of Ohio’s prior determination that the registration and notification statute is civil and remedial in nature, and not punitive. I write separately to note as we did in State v. Charette, 11th Dist. No. 2008-L-069, 2009-Ohio-2952, that the Supreme
{¶91} As Justice Lanzinger stated in her concurring in part and dissenting in part opinion in Wilson: “I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.” See, also, Ferguson (Lanzinger, J., dissenting). I believe Senate Bill 10 merits review by the Supreme Court of Ohio to address the issue of whether the current version of
COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.
{¶92} I respectfully dissent.
{¶93} 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 defendant was found guilty of a sexually oriented offense which was not exempted from any registration, he could be classified as a sexually oriented offender, a habitual sex offender, or a sexual predator. The prior statutory scheme also provided that a defendant’s designation under the three categories was to be predicated upon the nature of the underlying offense and findings of fact made by the trial court during a sexual classification hearing.
{¶95} 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 defendant’s sexual offense places him in the “Tier I” category, he is required to register once every year for a period of fifteen years, but there is no community notification; (2) if the defendant’s offense falls under the “Tier II” category, registration must take place once every six months for twenty-five years, and there is still no notification requirement; and (3) if the sexual offense places the defendant in the “Tier III” category, the requirements are essentially the same as for a sexual predator, in that there is a
{¶96} 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 has increased. As part of the general registration form, the offender must indicate: his full name and any aliases, his social security number and date of birth; the address of his residence; the name and address of his employer; the name and address of any type of school he is attending; the license plate number of any motor vehicle he owns; the license plate number of any vehicle which he operates as part of his employment; a description of where his motor vehicles are typically parked; his driver’s license number; a description of any professional or occupational license which he may have; any e-mail addresses; all internet identifiers or telephone numbers which are registered to, or used by, the offender; and any other information which is required by the bureau of criminal identification and investigation.
{¶97} Ex Post Facto
{¶99} “The ex post facto clause extends to four types of laws:
{¶100} “‘“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.)
{¶101} 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:
{¶102} “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,
{¶103} “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 challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.” Smith at 92-93. (Parallel citations omitted.)
{¶104} 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.
{¶105} First, there is the simple fact that S.B. 10 is part of
{¶106} 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.,
{¶107} Both the placement of S.B. 10 within the Revised Code, and the language of the statute, indicates a punitive, rather than remedial, purpose.2 Further, as Judge James J. Sweeney of the Eighth Appellate District recently noted regarding the intent of S.B. 10:
{¶108} “*** the General Assembly expressed a remedial intent in the legislation. However, the stated purpose of protecting the public from those likely to reoffend is substantially undermined by the total removal of any discretion or consideration in applying the tier labels to a particular offender. The fact of conviction alone controls the labeling process, but simply is not in and of itself indicative of a realistic likelihood of a person to recidivate. In addition, the severity of the potential penalty for violating [the registration and notification] provisions of [S.B. 10] depends upon the underlying offense that serves as the basis for the offender’s registration or notification conditions.” State v. Omiecinski, 8th Dist. No. 90510, 2009-Ohio-1066, at ¶91. (Sweeney, J., dissenting in part.)
{¶109} Consequently, I believe that the intent of S.B. 10 is punitive, rather than remedial.
{¶111} Regarding the first factor, S.B. 10 clearly imposes significant affirmative disabilities upon offenders. They must register personally with the sheriffs of any county in which they live, work, or attend school, as often as quarterly. Failure to do so may result in felony prosecution – even if the offender is, for instance, hospitalized, and unable to go to the sheriff’s office.
{¶112} 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?
{¶113} 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
{¶114} 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.
{¶115} 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.
{¶116} The second Kennedy factor requires us to consider whether S.B. 10 imposes conditions upon offenders traditionally regarded as punishment. Clearly it does. The affirmative duties to register constantly with law enforcement, and turn over to them vast amounts of private information, the limitations upon where an offender may live, and the duty to answer any question posed by the BCI renders the registration requirements of S.B. 10 the functional equivalent of community control sanctions.
{¶117} 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
{¶118} 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.
{¶119} There are certain retributive factors in the registration requirements: i.e., the necessity of registering personally and the mandate that all personal information of any type be turned over, upon request, to the BCI. These do not affect future conduct or solve any problem. They simply impose burdens upon offenders. Similarly, the prohibition upon offenders living within a certain proximity of schools, pre-schools, and day care facilities is a form of retribution, since it applies across the board, and not simply to violent offenders or child-victim offenders.
{¶120} 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
{¶121} Thus, S.B. 10’s requirements fulfill the traditionally punitive roles of retribution and deterrence.
{¶122} 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:
{¶123} “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 triggers the registration requirement. Because it is the criminal conviction, and only the criminal conviction, that triggers obligations under [the law], we conclude that this factor supports the conclusion that [the law] is punitive in effect.” Doe, supra, at 1015. (Footnote omitted.)
{¶124} 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.
{¶125} 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
{¶126} S.B. 10’s intent is punitive. Its effect is punitive. S.B. 10 violates the federal constitutional ban on ex post facto laws.
{¶127} Retroactivity
{¶128}
{¶129} “‘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 ***.’ Ferguson, supra, at ¶13.” Swank, supra, at ¶91. (Parallel citations omitted.)
{¶131} The foregoing establishes that S.B. 10 is an unconstitutional retroactive law, as applied to appellant. By its terms, it applies retroactively. Second, it attaches new burdens and disabilities to a past transaction, since it violates the constitutional protections against ex post facto laws.
{¶132} Double Jeopardy
{¶133} The Supreme Court of Ohio has held:
{¶134} “The
{¶136} Based upon the foregoing, I do not find it necessary to expound upon the other constitutional issues raised.
{¶137} For the foregoing reasons, I dissent.