State v. Daniel
Court of Appeals No. L-21-1104
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
April 22, 2022
2022-Ohio-1348
Trial Court No. CR0201902973
State of Ohio Appellee v. Tyree K. Daniel Appellant
DECISION AND JUDGMENT
Decided: April 22, 2022
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Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Edward J. Stechschulte, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Tyree K. Daniel, appeals the judgment entered by the Lucas County Common Pleas court, sentencing him to three years of community control, with 60 days of incarceration at CCNO, and stating that he was given an “Explanation of
Statement of the Case and the Facts
{¶ 2} On or about October 10, 2019, appellant and others were involved in setting fire to a studio structure at 3240 Lagrange Street, in Toledo, Ohio.
{¶ 3} On November 12, 2019, appellant was indicted on one count of aggravated arson in violation of
{¶ 4} On January 16, 2020, appellant entered a guilty plea to Count 2 as amended, which charged him with arson, in violation of
{¶ 5} Under
{¶ 6} On April 28, 2021, the trial court sentenced appellant to three years of community control, with 60 days of incarceration at CCNO. The state did not request a reduced period of registration, and the trial court notified appellant of his duties to register as an arson offender for a period of life.
Assignments of Error
{¶ 7} Appellant asserts the following assignments of error on appeal:
- Ohio Revised Code § 2909.15(D)(2)(b) is Unconstitutional as it Violates the Separation of Powers Doctrine.
- The Trial Court erred in sentencing Appellant to register pursuant to
R.C. § 2950.032 .
Analysis
{¶ 8} The Ohio General Assembly passed legislation requiring mandatory registration for all arson offenders. Am.Sub.S.B. No. 70,
{¶ 9} Appellant, in his first assignment of error, challenges the constitutionality of
{¶ 10} The Supreme Court of Ohio has held that “[a]lthough the Ohio Constitution does not contain explicit language establishing the doctrine of separation of powers, it is inherent in the constitutional framework of government defining the scope of authority conferred upon the three separate branches of government.” State v. Sterling, 113 Ohio St.3d 255, 2007-Ohio-1790, 864 N.E.2d 630, ¶ 22. “It ‘represents the constitutional diffusion of power within our tripartite government. The doctrine was a deliberate design to secure liberty by simultaneously fostering autonomy and comity, as well as interdependence and independence, among the three branches.‘” State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 42, quoting Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 114.
{¶ 11} “While no exact rule can be set forth for determining what powers of government may or may not be assigned by law to each branch, * * * ‘[i]t is nevertheless true, in the American theory of government, that each of the three grand divisions of the government, must be protected from encroachment by the others, so far that its integrity and independence may be preserved.‘” S. Euclid v. Jemison, 28 Ohio St.3d 157, 159, 503 N.E.2d 136 (1986), quoting Fairview v. Giffee, 73 Ohio St. 183, 187, 76 N.E. 865 (1905) (internal citation omitted). “The essential principle underlying the policy of the of the division of powers of government into three departments is that powers properly belonging to one of the departments ought not to be directly and completely administered
Judicial Power
{¶ 12}
{¶ 13} Significantly, however:
Judges have no inherent power to create sentences. * * * Rather, judges are duty-bound to apply sentencing laws as they are written. * * * ‘[T]he only sentence which a trial court may impose is that provided for by statute. A court has no power to substitute a different sentence for that provided for by statute or one that is either greater or lesser than that provided for by law.’
State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 18, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22. “It has long been recognized in this state that the General Assembly has the plenary power to prescribe crimes and fix penalties.” State v. Morris, 55 Ohio St.2d 101, 112, 378 N.E.2d 708 (1978). Thus, “[the] discretionary power of judges to sentence is granted by the legislature and can be circumscribed by the legislature.” State v. Dopart, 9th Dist. Lorain No. 13CA010486, 2014-Ohio-2901, ¶ 7 (quotation omitted).
{¶ 14} In short, the General Assembly defines, classifies, and prescribes punishment, and the judiciary imposes that punishment through its statutory authority. See State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 12-13.
{¶ 16} In State v. Dingus, 2017-Ohio-2619, 81 N.E.3d 513 (4th Dist.), the Fourth District Court of Appeals determined that
By depriving the trial court of the ability to act without the request of the prosecutor and the investigating law enforcement agency, the trial court‘s independence is compromised. The prosecutor and the investigating law enforcement agency effectively decide which registration periods can be reviewed by the trial court; thus, the prosecutor and the investigating law enforcement agency have an ‘overruling influence’ over the trial court. Id. at ¶ 31.
Insofar as the statute authorizes a prosecuting attorney to agree or disagree with an inmate‘s request for DNA testing, it comports with the exercise of authority by the executive department of government because the prosecutor is charged with the responsibility to prove guilt beyond a reasonable doubt. However, those portions of the statute that make the prosecuting attorney‘s disagreement final, and not appealable to any court, and that deprive the court of its ability to act without the prosecutor‘s agreement interfere with the court‘s function in determining guilt, which is solely the province of the judicial branch of government. * * *
Accordingly, [the statute] violates the doctrine of separation of powers and is therefore unconstitutional. Id. at ¶ 35.
{¶ 19} We begin by recognizing that because the arson registration statute is not punitive, its registration requirements do not constitute an aspect of a criminal sentence. Under
{¶ 20} In an attempt to avoid this determination, appellant urges this court to reconsider its earlier decision that the arson registry statute is not punitive by applying certain factors that were considered by the Supreme Court of Ohio in its decision determining that sex offender registration and notification requirements are punitive. See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 NE.2d 1108. In support of his position, appellant claims that “[a]t least six factors discussed in Williams support a finding that the arson offender registry is punitive: (1) it is placed within R.C. Title 29, Ohio‘s criminal code; (2) the failure to register subjects an offender to criminal prosecution; (3) the registration requirements are automatic; (4) there is no entitlement to a hearing prior to classification; (5) there is no opportunity for the court to review the
{¶ 21} Applying the Williams analysis to the arson-offender registration provisions, the First District Court of Appeals, in State v. Caldwell, 2014-Ohio-3566, 18 N.E.3d 467 (1st Dist.), concluded as follows:
The arson-offender registration statutes do bear similarities to those pertaining to the sex-offender registry. Both the sex-offender and arson offender registration schemes have been placed within R.C. Title 29 – Ohio‘s criminal code. See Williams at ¶ 11. The failure to register under either scheme subjects offenders to criminal prosecution. See id. Arson offenders are automatically subject to registration requirements upon conviction for any arson-related offense, ‘without regard to the circumstances of the crime or [their] likelihood to reoffend.’ See id. at ¶ 16. They are not entitled to a hearing prior to classification, nor is there any opportunity for the court to review the appropriateness of the classification. See id. at ¶ 19. Further, arson offenders are automatically subject to a lifetime reporting requirement – with a limited exception that permits the trial court to reduce their reporting requirement to no less than ten years, upon the request of the prosecutor and investigating officer.
R.C. 2909.15(D)(2)(b) .
Nonetheless, the arson-offender registration statutes differ from the sex-offender provisions in significant ways. Sex offenders must register in potentially three different counties – those in which they reside, work, and attend school – and some must register as frequently as 90 days. Williams at ¶ 13. In contrast, arson offenders need only register annually in the county in which they reside. The Williams court emphasized the stigma that follows from an offender‘s placement on the public sex-offender registry. Id. Conversely, the arson-offender registry is visible only to certain law-enforcement personnel. The sex-offender statutes impose stringent restrictions on where the offender is permitted to reside, whereas arson offenders are not subject to any residential restrictions. Id. And while arson-registry violations may subject the offender to later prosecution, we think it notable that the failure to register is a low-level felony that carries a presumption of probation.
R.C. 2909.15(H) . This is markedly different from the failure of a sex offender to register, which constitutes a felony of the same degree as that of the underlying conviction. SeeR.C. 2950.99 . For example, if a sex offender who committed a first degree felony sex offense fails to register, that failure to register constitutes another first-degree felony with a potential punishment of up to 11 years in prison.R.C. 2950.99(A)(1)(a) and2929.14(A)(1) . In view of these
considerable differences, we cannot say that the arson-offender registration requirements are so punitive that they impose a new burden in the constitutional sense. Id. at ¶ 33-34.
We agree with the analysis set forth in Caldwell and, on that basis, decline to alter our previous determination that the arson registry statute is not punitive.
{¶ 22} Even assuming, arguendo, that
{¶ 23} Based on this analysis, we disagree with the court‘s conclusion in Dingus that
{¶ 24} In an attempt to avoid this conclusion, appellant argues that the state‘s role in making the
{¶ 25} Appellant next argues that
{¶ 26} Presuming, as we must, the constitutionality of the legislation, we find that appellant has failed to establish beyond a reasonable doubt that the statute is unconstitutional. See Towns, 6th Dist. Williams No. WM-19-023 at ¶ 38, 2020-Ohio-5120. Accordingly, appellant‘s first assignment of error is found not well-taken.
{¶ 27} Appellant argues in his second assignment of error that the trial court erred in sentencing appellant to register pursuant to
Your Social Security Number along with your full name and any alias. You have to provide your residence address, you have to give information regarding this offense that you were convicted of, you have to give any physical description of distinguishing marks on your person. You have to give addresses of any place of employment or school. You have to give your driver‘s license number, if you have one, or any state identification card number if one has been issued to you. The license plate of any vehicle owned or operated by you along with a description of any vehicle that you are known to drive.
{¶ 28} The court further advised:
They‘re going to take your finger and palm print along with a photograph. You have to submit a registration fee of $50 unless the sheriff decides to waive that fee. You will have to re-register every year on a once a year, annual basis for the rest of your life and you have to update or
amend any of this information if it changes within 10 days of the anniversary date of today‘s date or actually date that you actually register. Also have to pay $25 registration fee.
The trial court additionally noted that the registration requirement was for life.
{¶ 29}
{¶ 30} Because our conclusion and analysis with respect to appellant‘s first assignment of error is in direct conflict with the Fourth District‘s opinion in Dingus, supra, we sua sponte certify a conflict to the Supreme Court of Ohio on the following question: “Does
{¶ 31} For all of the foregoing reasons, the judgment of the Lucas County Common Pleas Court is affirmed. We remand this matter to the trial court for the limited purpose of issuing a nunc pro tunc entry to reflect that appellant is to register as an arson offender, pursuant to
Judgment affirmed and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Christine E. Mayle, J.
Myron C. Duhart, P.J. CONCUR.
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.