State v. EttengerState v. Ettenger
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Respondent-Appellee).
Richard J. Perez, Rosplock & Perez, Interstate Square Building I, 4230 State Route 306, Suite 240, Willoughby, OH 44094-9204 (For Defendant-Petitioner-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Jason Ettenger appeals from a judgment of the Lake County Court of Common Pleas, which denied his petition to contest his reclassification as a Tier III offender under Ohio‘s new sex offender registration law. For the following reasons, we reverse judgment of the Lake County Court of Common Pleas and remand the matter for proceedings consistent with this opinion.
{¶3} After Ettenger‘s conviction, the state waived a sex offender classification hearing and, based on the evidence in the record and the stipulation between the state and Ettenger, the trial court classified him as a “sexually oriented offender.” Under the former sex offender registration law, he was required to register at the sheriff‘s office of the county of his residence once a year for ten years.
{¶4} Under Ohio‘s Adam Walsh Act (“AWA“), which became effective on January 1, 2008, Ettenger has been reclassified as a Tier III offender. On November 29, 2007, he was notified by a letter from the Attorney General‘s Office informing him that he has been reclassified under the AWA as a Tier III offender, and he is now required to register personally with the sheriff‘s office once every 90 days for life.
{¶5} At the time he received the notice from the Attorney General‘s Office, Ettenger had resided in Lake County, Ohio for several years and was temporarily residing in Missouri.
{¶6} On January 29, 2008, he filed a petition in the Lake County Court of Common Pleas to contest his reclassification, which he claimed to be a violation of his constitutional rights. The trial court held a hearing and denied his petition.
{¶7} Ettenger timely appealed, assigning the following error for our review:
{¶8} “[1.] The trial court erred when it denied appellant‘s petition challenging reclassification and reclassified his sex offender status, pursuant to Ohio‘s Adam Walsh Act, Senate Bill 10, an unconstitutional body of laws.”
Ex Post Facto Clause
{¶10} Ettenger claims the retroactive application of Ohio‘s AWA to him constitutes an ex post facto law proscribed by
{¶11} Under well-established precedent, this provision is intended to apply (1) when a new law seeks to punish a prior action which did not constitute a crime at the time of its commission, or (2) when a new law seeks to increase the punishment for a crime following its actual commission. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, at ¶30. (Citation omitted.)
{¶12} The “ex post facto” prohibition applies solely to criminal statutes. State v. Byers, 7th Dist. No. 07 CO 39, 2008-Ohio-5051, at ¶12. To determine whether a legislative enactment is to be considered civil or criminal for ex post facto purposes, the Supreme Court of Ohio has employed the “intent-effects” test. State v. Cook (1998), 83 Ohio St.3d 404, 415. (Citations omitted.) In In re: G.E.S., 9th Dist. No. 24079, 2008-Ohio-4076, at ¶18, this test was described in the following manner:
“{¶13} First, the court must ask whether the legislature intended for the statute to be civil and non-punitive or criminal and punitive. *** The Ex Post Facto Clause only
prohibits criminal statutes and punitive schemes. *** Thus, a determination that the legislature intended the statute to be punitive ends the analysis and results in a finding that the statute is unconstitutional. *** If, however, the legislature intended for the statute to be civil and non-punitive, then the court must ask whether the statutory scheme is so punitive in nature that its purpose or effect negates the legislature‘s intent. *** Accordingly, to withstand the Ex Post Facto Clause, a statute must be civil and non-punitive with regard to both the legislature‘s intent in enacting it and its actual effect upon enactment.” (Citations omitted.)
{¶14} The provisions of Senate Bill 10 demonstrate the General Assembly‘s intent for the new statutory scheme to be punitive. Similar to the 1997 version of
{¶15} Senate Bill 10 is placed within Title 29, Ohio‘s Criminal Code. The specific classification and registration duties are directly related to the offense committed. Further, failure to comply with registration, verification, or notification requirements
{¶16} The following mandates by the legislature are also indicative of its intent for the new classification to be a portion of the offender‘s sentence. First,
{¶17} As defined by the Ohio Revised Code, “sentence” is “the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense.”
{¶18} Therefore, the placement of Senate Bill 10 in the criminal code, along with
{¶19} In Cook, the Supreme Court of Ohio analyzed the 1997 version of
{¶20} The Cook Court emphasized the statutory scheme‘s “narrowly tailored attack on th[e] problem[,]” stating “the notification provisions apply automatically only to sexual predators or, at the court‘s discretion, to habitual sex offenders. *** Required dissemination of registered information to neighbors and selected community officials likewise is an objectively reasonable measure to warn those in the community who are most likely to be potential victims.” Id. (Emphasis added and internal citations omitted.) The Cook Court noted that the dissemination of the required information was available for inspection only by law enforcement officials and “those most likely to have contact with the offender, e.g., neighbors, the director of children‘s services, school superintendents, and administrators of preschool and day care centers.” Id. at 422. (Emphasis added.)
{¶21} While the statute at issue in Cook restricted the access of an offender‘s information to “those persons necessary in order to protect the public[,]” Senate Bill 10 requires the offender‘s information to be open to public inspection and to be included in the internet sex offender and child-victim offender database.
{¶22} 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 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 he may have; any e-mail addresses; all internet identifiers or telephone numbers that are registered to, or used by, the offender; and any other information that is required by the bureau of criminal identification and investigation.
{¶23} Furthermore, the Cook Court determined that former
{¶24} “[I]f we were to adjudicate all sexual offenders as sexual predators, we run the risk of ‘being flooded with a number of persons who may or may not deserve to be classified as high-risk individuals, with the consequence of diluting both the purpose behind and the credibility of the law. This result could be tragic for many.’
State v. Thompson (Apr. 1, 1999), Cuyahoga App. No. 73492, unreported, 1998 WL 1032183. Moreover, the legislature would never have provided for a hearing if it intended for one conviction to be sufficient for an offender to be labeled a ‘sexual predator.‘”
{¶25} Also of significance, the Eppinger Court noted that “[o]ne sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior.” Id. at 162.
{¶26} In addition, former
{¶27} Unlike the statute at issue in Cook and Eppinger, an individual‘s registration and classification obligations under Senate Bill 10 depend solely on his or her crime, not upon his or her ongoing threat to the community. The result is a ministerial rubber stamp on all offenders, regardless of any mitigating facts in the individual case. The legislative basis for this seems to be expert analysis that puts all offenders in one of two categories: those who have offended more than once, and those who have offended only once, but are likely to offend again at some point in the future. This process, as delineated in Senate Bill 10, has stripped the trial court from engaging in an independent classification hearing to determine an offender‘s likelihood of
{¶28} While the legislature may be entitled to adopt this questionable approach to apply to offenders from the date of passing the legislation, neither the
{¶29} Moreover, to date, the majority of the current justices on the Supreme Court of Ohio have objected to the characterization of Ohio‘s sex offender classification system as a “civil” proceeding. In State v. Wilson, Justice Lanzinger, whose dissenting opinion was joined by Justice O‘Conner, stated the “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.” State v. Wilson, 2007-Ohio-2202, at ¶46. (Lanzinger, J., concurring in part and dissenting in part.) More recently, Justice Lanzinger again voiced her concern in a dissenting opinion in State v. Ferguson, where she stated ”
{¶30} Furthermore, even if it were construed that the General Assembly‘s intent was civil in nature, Senate Bill 10 is unconstitutional due to its punitive effect as applied to Ettenger. In assessing the effect of a statute, the United States Supreme Court has “provid[ed] some guidance” by indicating certain factors to be applied in resolving this point. The factors include:
{¶31} “Whether 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 is already a crime, *** whether an alternative purpose to which it may rationally be connected is assignable for it, *** and whether it appears excessive in relation to the alternative purpose assigned ***[.]” Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169. (Internal citations omitted.)
{¶32} While the Cook Court concluded that (1) historically, the requirement of registration has been deemed a valid regulatory technique, and (2) the dissemination of information is considered non-punitive when it supports a proper state interest, it analyzed the 1997 version of
{¶33} Since Cook, the sexual offender laws have been significantly modified. For example, 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 State v. Cook, 83 Ohio St.3d at 408. Under the latest version of the scheme, however, the
{¶34} The Supreme Court of Alaska, in Doe v. Alaska (2008), 189 P.3d 999, recognized the effects of requiring an offender to place personal information on a public registry. The Doe Court stated:
{¶35} “*** [W]e agree with the conclusion of Justice Ginsburg, also dissenting in Smith, that ASORA [Alaska‘s Sex Offender Registration Act] ‘exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism.’ *** In the decision reversed in Smith, the Ninth Circuit observed that ‘(b)y posting (registrants‘) names, addresses, and employer addresses on the internet, the Act subjects (registrants) to community obloquy and scorn that damage them personally and professionally.’ *** The Ninth Circuit observed that the practical effect of this dissemination is that it leaves open the possibility that the registrant will be
denied employment and housing opportunities as a result of community hostility. *** As Justice Souter noted in concurring in Smith, ‘there is significant evidence of onerous practical effects of being listed on a sex offender registry.’ *** Outside Alaska, there have been reports of incidents of suicide by and vigilantism against offenders on state registries. *** {¶36} “***
{¶37} “*** ASORA requires release of information that is in part not otherwise public or readily available. Moreover, the regulations authorize dissemination of most ASORA registration information ‘for any purpose, to any person.’ *** Taken in conjunction with the Alaska Public Records Act, *** ASORA‘s treatment of this information, confirmed by the regulations, seems to require that the information be publicly available. By federal law, it is disseminated statewide, indeed worldwide, on the state‘s website. *** There is a significant distinction between retaining public paper records of a conviction in state file drawers and posting the same information on a state-sponsored website; this posting has not merely improved public access but has broadly disseminated the registrant‘s information, some of which is not in the written public record of the conviction. As the Alaska Court of Appeals noted, ‘ASORA does provide for dissemination of substantial personal and biographical information about a sex offender that is not otherwise readily available from a single governmental source.’ *** We also recognized in Doe A that several sex offenders had stated that they had lost their jobs, been forced to move from their residences, and received threats of violence following establishment of the registry, even though the facts of their convictions had always been a matter of public record. *** We therefore conclude that the harmful
effects of ASORA stem not just from the conviction but from the registration, disclosure, and dissemination provisions.” Id. at *1009-1011. (Internal citations omitted.)
{¶38} After careful examination of this opinion, we agree with the reasoning and conclusion of the Doe Court.
{¶39} As to whether the new registration and notification requirements must be viewed as consistent with historical forms of punishment, the United States Supreme Court, in Smith v. Doe, 538 U.S. at 98, held that the dissemination of truthful information concerning a sexual offender does not constitute a historical form of punishment when it is done in the furtherance of a legitimate governmental interest. As part of its analysis of an Alaskan sexual offender scheme, the Smith Court expressly rejected the argument that registration and notification requirements resemble the punishment of public shaming, as used in colonial times. Id., at 98-99. However, after the decision in Smith was rendered, the Supreme Court of Alaska, in Doe, determined that ASORA is punitive and in violation of the due process clause of the
{¶40} “ASORA does not expressly impose sanctions that have been historically considered punishment. *** Because registration acts such as ASORA are ‘of fairly recent origin,’ courts addressing this issue have determined that there is no historical equivalent to these registration acts. *** Some courts have instead considered whether the acts are analogous to the historical punishment of shaming; these courts have concluded that they are not. *** But the dissemination provision at least resembles the punishment of shaming *** and the registration and disclosure provisions ‘are
comparable to conditions of supervised release or parole.’ *** And these provisions have effects like those resulting from punishment. The fact that ASORA‘s registration reporting provisions are comparable to supervised release or parole supports a conclusion that ASORA is punitive.” Id. at 1012.
{¶41} Furthermore, Senate Bill 10 cannot promote the goals of retribution and deterrence when the classification of an offender is based solely upon the nature of the crime committed, not on an individual‘s recidivism potential.
{¶42} The Cook Court stated that registration and notification requirements are not intended to deter the behavior of the offender, but are instead intended to help the public protect itself from the harmful behavior. State v. Cook, 83 Ohio St.3d at 420. Furthermore, with the enactment of Senate Bill 10, the legislature contends that the dissemination of an offender‘s personal information is intended to protect public safety.
{¶43} However, under Senate Bill 10, every offender must provide identical information, and the information is published in the same manner for every offender. The only factor that differentiates the offenders is the frequency and duration of the registry. Furthermore, the offenders are not given the opportunity to petition the trial court to restrict the public dissemination of his or her personal information, since the public is allowed unrestricted access to the offender‘s personal information. If this were the case under Senate Bill 10, it is conceivable that the notification policy would
{¶44} The new law as applied to this case resulted in an offender, with a clear expectation that his reporting was going to end in ten years, to be legislatively resentenced to an irrefutable lifetime of reporting. Based on the foregoing, Senate Bill 10 violates the ex post facto laws, as applied to Ettenger.
Retroactivity
{¶45} Ettenger argues even if the new law does not constitute an ex post facto law as applied to him,
{¶46}
{¶47} A two-step standard is followed to decide if the retroactive application of a statute will be deemed to violate the constitutional clause. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, at ¶9-10. (Citation omitted.) Pursuant to the first prong of the “retroactive” test, the language of the statute is reviewed to see whether the legislature expressly stated that retroactive application was intended. Id. (Citation omitted.) If the wording of the General Assembly is sufficiently explicit to show a retroactive intent, the statute is then reviewed to determine if it affects a substantive or remedial matter. Id. (Citation omitted.)
{¶49} The Cook Court determined that applying Megan‘s Law to those convicted under prior law did not offend the Retroactivity Clause. State v. Cook, 83 Ohio St.3d at 414. In Cook, the Supreme Court of Ohio stated: “[t]o hold otherwise would be ‘to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence.‘” Id. (Citation omitted.)
{¶50} In State v. Wilson, 2007-Ohio-2202, at ¶32, the Supreme Court of Ohio relied upon its prior holding in Cook, supra, to hold that sex offender classification proceedings under
{¶52} “While protection of the public is the avowed goal of
R.C. Chapter 2950 , we cannot deny that severe obligations are imposed upon those classified as sex offenders. All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. *** Therefore, 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.” Id. at ¶46. (Internal citation omitted.)
{¶53} Thereafter, in State v. Ferguson, 2008-Ohio-4824, at ¶27-¶40, the Supreme Court of Ohio again relied upon State v. Cook, 83 Ohio St.3d 404, State v. Williams, 114 Ohio St.3d 103, 2007-Ohio-3268, and State v. Wilson, 2007-Ohio-2202, in determining that the amended provisions of
{¶54} Justice O‘Connor, writing for the majority, noted that she had joined Justice Lanzinger‘s dissent in Wilson, supra, “but it did not garner sufficient votes to form the majority ***.” State v. Ferguson, 2008-Ohio-4824, at ¶30, fn. 4. After a close reading of Ferguson, however, it appears to be distinguishable from Wilson. In writing for the majority, Justice O‘Connor made a very important distinction, as Ferguson had
{¶55} “[W]e 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. Indeed, the record before us is entirely devoid of such an argument and of any evidence that would support a reasonable conclusion that Ferguson was likely to have his classification removed. Absent such an expectation, there is no violation of the Ohio Constitution‘s retroactivity clause.” Id. at ¶34. (Emphasis sic.)
{¶56} While the prohibition against ex post facto laws applies only to criminal cases, the retroactivity provisions of the
{¶58} In the instant case, Ettenger certainly had a reasonable expectation that his classification and attendant requirements were to last a finite period of ten years. Further, this reasonable expectation of finality was based on the agreement with the state of Ohio. Yet, through the enactment of Senate Bill 10, Ettenger is subject to mandatory lifetime reporting. The prospect of this result could have easily changed his decision to enter a guilty plea in his case and instead proceed to trial.
{¶59} Based on the foregoing and when applied retroactively to offenders such as Ettenger, Senate Bill 10 violates the Ex Post Facto Clause of the
Impairment of Contracts
{¶60} Ettenger also argues that his sex offender classification pursuant to former
{¶61} Ettenger asserts that the provisions of Senate Bill 10 cannot be applied to him because it would violate the terms of his plea agreement and would result in a breach of his contract with the state. According to Ettenger, the state had agreed as part of the plea bargain to recommend to the court that he be classified as a “sexually oriented offender.” In light of this, he argues that the Attorney General cannot attempt to reclassify him without breaching the terms of the plea agreement.
{¶62} We recognize a plea agreement is considered a contract between the state and a criminal defendant; as a result, such an agreement is subject to the general laws of contracts. State v. Butts (1996), 112 Ohio App.3d 683, 685-686. Therefore, if one side violates a term of a plea agreement, the other party has a right to pursue certain remedies, including the rescission of the agreement. State v. Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, at ¶13.
{¶63} As part of Ettenger‘s plea bargain, the state and defense counsel stipulated that he was to be classified a “sexually oriented offender pursuant to O.R.C.
{¶64} “[T]his case was negotiated so that the offenses that he was originally charged with were reduced, and as part of that plea bargain, [the state and Ettenger] stipulated that [Ettenger] was only a sexually oriented offender, and [Ettenger] relied on that. *** That‘s what he understood that the result was going to be, and that‘s why [Ettenger] entered the plea.”
{¶65} This agreement was further evidenced in a journal entry dated May 7, 2002, indicating Ettenger plead guilty, was classified a sexually oriented offender, and address registration and verification was ordered annually for 10 years. The entry further states: “[t]his finding based on agreement of defense and prosecution.”
{¶66} The classification category has always been an important part of the plea considerations in these cases. Indeed, those common pleas judges who deal with plea bargains in sex cases on a regular basis know that classification issues play an important role in the process. Common Pleas Judge James DeWeese, Richland County, in a thorough and practical opinion noted: “[a]n observer who visits a courtroom when sex offenders are sentenced will see that sex offenders usually view the sex offender labeling, registration and community notification requirements as the most punitive and most odious part of their sentence.” Sigler v. Ohio (Aug. 11, 2008), Richland C.P. No. 07 CV 1863, unreported. Reversed by Sigler v. State, 5th Dist. No. 08-CA-79, 2009-Ohio-2010. In this case, Ettenger, the prosecutor, and the court agreed on his registration status. That should be the end of it. Reclassification by the state legislature clearly may have impacted Ettenger‘s decision to enter a plea and forego his right to trial.
Double Jeopardy
{¶68} Ettenger claims his reclassification constitutes successive punishment and is therefore a double jeopardy violation pursuant to the
{¶69} The Supreme Court of Ohio has held:
{¶70} “The
{¶71} The double jeopardy provision has been interpreted to apply in two basic situations: (1) when the state tries to pursue a second prosecution based upon the same facts; and (2) when the state attempts to impose a second punishment for the same offense. State v. Byers, 2008-Ohio-5051, at ¶100. However, the double jeopardy prohibition can only be invoked when the conduct of the government involves criminal punishment. State v. Williams (2000), 88 Ohio St.3d 513, 528.
{¶73} Now, through the enactment of Senate Bill 10, Ohio‘s sex offender classification system has been revamped, increasing the frequency, duration, and extent of the reporting requirements. Of specific concern is the “automatic” nature of the new classification system. An offender‘s classification status is solely based on the crime he or she has committed. If an offender commits an offense set forth in
{¶74} In this matter, Ettenger pled guilty to one count of attempted sexual battery. In 2002, he was sentenced for this offense and adjudicated a sexually oriented offender. He had an expectation of finality in that his reporting requirements would end in ten years. Now, additional punitive measures have been placed on Ettenger, as he is
Separation of Powers
{¶75} Ettenger also asserts that the new law violates the doctrine of separation of powers. Specifically, he claims it usurps the court‘s prior adjudication of him as a sexually oriented offender and by doing so it encroaches upon the authority reserved for the judiciary branch.
{¶76} The Seventh District evaluated a similar claim in State v. Byers, 2008-Ohio-5051 and found no violation of the doctrine of separation of powers. The Seventh District adopted the following analysis provided in State v. Slagle, 145 Ohio Misc.2d 98, 2008-Ohio-593:
{¶77} “‘[T]he Assembly has enacted a new law, which changes the different sexual offender classifications and time spans for registration requirements, among other things, and is requiring that the new procedures be applied to offenders currently registering under the old law or offenders currently incarcerated for committing a sexually oriented offense. Application of this new law does not order the courts to reopen a final judgment, but instead simply changes the classification scheme. This is not an encroachment on the power of the judicial branch of Ohio‘s government.‘” Byers, at ¶73, quoting Slagle, at ¶21 and also citing In re Smith, 3d Dist No. 1-07-58, 2008-Ohio-3234, at ¶39 and In re G.E.S., 2008-Ohio-4076, at ¶42.
{¶79} No abrogation of final judicial decisions occurred when a previously convicted offender such as Ettenger is reclassified subject to additional requirements. Therefore, the new law as applied to someone in Ettenger‘s situation does not violate the doctrine of separation of powers.
Substantive Due Process Rights and Privacy
{¶80} Ettenger also argues that the residency restrictions added by Senate Bill 5 in 2003 and enhanced by Senate Bill 10 violate the substantive component of the
{¶81} Pursuant to his reclassification, Ettenger is barred from residing within 1,000 feet of a school, pre-school, or child care center. He claims these restrictions loom over any residence selected by him because of the possibility of being uprooted and forced to abandon his home if a school or a day care center opens near his residence. He argues the restrictions violate his substantive due process right as it interferes with his liberty interest to live where he wishes and his right to privacy.
{¶82} Ettenger has failed to demonstrate that he has been injured by the
Conclusion
{¶83} Ettenger‘s assignment of error has merit to the extent indicated.
{¶84} The result in this case would not necessarily be the same for someone who either was, or could have been, adjudicated a sexual predator under prior law. Even though the current law is determined to be punitive in nature, unless the record would establish otherwise, the disparity of impact of the current law on an individual classified as a sexual predator is likely to be de minimus. That would significantly alter the analysis in this case, since a lifetime of reporting is a lifetime of reporting.
{¶85} The judgment of the Lake County Common Pleas Court is hereby reversed, and this matter is remanded for proceedings consistent with this opinion.
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion,
MARY JANE TRAPP, P.J., concurs in part, dissents in part with a Concurring/Dissenting Opinion.
____________________
{¶86} I concur with the judgment ultimately reached by the majority, that Ettenger may not be constitutionally reclassified under the provisions of the Adam Walsh Act. However, I disagree entirely with the analysis employed by the majority. Accordingly, I concur in judgment only. Ettenger‘s duty to register as a sex offender and provide appropriate notification as required by his original sentencing order remains in full force and effect.
{¶87} The application of the Adam Walsh Act, amending Ohio‘s Sex Offender Registration and Notification Act, to previously journalized final sentencing judgments or orders violates the constitutional doctrine of separation of powers because it legislatively vacates the settled and journalized final judgments of the judicial branch of government.
{¶88} The doctrine of separation of powers limits the ability of the General Assembly to exercise the powers of and exert an influence over the judicial branch of government. “The administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers.” State ex rel. Johnston v. Taulbee (1981), 66 Ohio St.2d 417, at paragraph one of the syllabus.
{¶89} “[I]t is well settled that the legislature cannot annul, reverse or modify a judgment of a court already rendered.” Bartlett v. Ohio (1905), 73 Ohio St. 54, 58; Gompf v. Wolfinger (1902), 67 Ohio St. 144, at paragraph three of the syllabus (“[a] judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted“). Cf. Plaut v. Spendthrift Farm, Inc. (1995), 514 U.S. 211, 219 (Congress may not interfere with the power of the federal judiciary “to render dispositive judgments” by “command[ing] the federal courts to reopen final judgments“) (citation omitted).
{¶90} A determination of an offender‘s classification under former
{¶91} Accordingly, if either party failed to appeal such a determination within thirty days, as provided for in
{¶92} In the present case, Ettenger‘s status as a sexually oriented offender became final when it was journalized by the trial court on March 7, 2002. Good legislative intentions notwithstanding, that status cannot be legislatively vacated by the subsequent application of the Adam Walsh Act.
{¶93} The majority‘s analysis rests on the erroneous conclusion that the Adam Walsh Act is punitive and, thus, violates the
{¶94} The Legislature‘s intent in passing the Act is expressly stated: “it is the general assembly‘s intent to protect the safety and general welfare of the people of this state” and “the policy of this state to require the exchange *** of relevant information about sex offenders and child-victim offenders among public agencies and officials and to authorize the release *** of necessary and relevant information about sex offenders and child-victim offenders to members of the general public as a means of assuring public protection *** is not punitive.”
{¶95} In the absence of such a statement, consideration of the Act‘s placement within the criminal code and the provisions commanding that an offender‘s classification
{¶96} It is also unnecessary to comment on what the majority considers the Legislature‘s “questionable approach” to protecting the public from sexual offenders. “Any constitutional analysis must begin with *** the understanding that it is not this court‘s duty to assess the wisdom of a particular statute.” Groch v. GMC, 117 Ohio St.3d 192, 2008-Ohio-546, at ¶141.
{¶97} The majority also errs in its conclusion that the effects of the Act‘s provisions are punitive, regardless of the Legislature‘s motives for enacting them. In support, the majority notes that sexual offenders are “now obligated to register in more counties,” “provide more information,” and, for some offenders, the registration period is extended.2
{¶98} These aspects of the Adam Walsh Act, however, were already present in prior amendments to
{¶99} In Ferguson, the appellant argued the retroactive application of the following provisions violated the
{¶100} With respect to the
{¶101} The changes enacted by the Adam Walsh Act are not qualitatively different from those enacted by S.B. 5. Under Ferguson, therefore, their retroactive application does not violate the
{¶102} Finally, I take exception with the majority‘s conclusion that only sexual offenders who were subject to “specific, terminable reporting requirements” possessed a reasonable expectation of finality in the conditions of their classification. The expectation of finality does not derive from the eventual termination of the classification, but, rather, from the fact that one‘s classification was rendered as part of the trial court‘s final judgment. An offender who is sentenced for life has just as much expectation that he will serve a life sentence as the offender who is sentenced for ten years expects to serve a ten-year sentence.
____________________
{¶104} I concur with the majority‘s conclusion that the residency restrictions do not violate Mr. Ettenger‘s substantive due process and privacy rights. I also concur with its conclusion that no abrogation of final judicial decisions occurs in violation of the separation of powers when a previously convicted offender such as Mr. Ettenger is reclassified subject to additional requirements.
{¶105} I respectfully dissent, however, regarding the majority‘s determination that Senate Bill 10 is criminal rather than civil and thus violative of the prohibition against ex post facto laws and retroactive legislation.
{¶106} I recognize that the Supreme Court of Ohio has become more divided on the issue of whether the registration and notification statute has evolved from a remedial and civil statute into a punitive one. 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, State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824 (Lanzinger, J., dissenting). Therefore, I believe Senate Bill 10 merits review by the Supreme Court of Ohio to address the issue
{¶107} Before that court revisits the issue, however, I believe, we, as an inferior court, are bound to apply its holdings in Cook, Wilson, and Ferguson, as we did in the unanimously decided case in State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059. See, also, State v. Charette, 11th Dist. No. 2008-L-069, 2008-Ohio-2952. Unless and until the highest court of the state decides otherwise, the principle of stare decisis dictates that we follow our court‘s precedent providing litigants their entitled predictability and stability.
{¶108} Furthermore, I disagree with the majority‘s analysis on Mr. Ettenger‘s impairment of contract claim. He asserts that the application of the provisions of Senate Bill 10 to him would violate the terms of his plea agreement and therefore would result in a breach of his contract with the state.
{¶109} I recognize a plea agreement is considered a contract between the state and a criminal defendant. As a result, such an agreement is subject to the general laws of contracts. State v. Butts (1996), 112 Ohio App.3d 683, 686. Therefore, if one side violates a term of a plea agreement, the other party has a right to pursue certain remedies, including the rescission of the agreement. State v. Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, ¶13.
{¶110} However, in applying the elementary rules of contract law to plea agreements, the courts of Ohio have held that an alleged breach of such an agreement
{¶111} Finally, I disagree with the majority‘s conclusion that Mr. Ettenger‘s reclassification constitutes successive punishment and thus a double jeopardy violation. The double jeopardy provision has been interpreted to apply in two basic situations: (1) when the state tries to pursue a second prosecution based upon the same facts; and (2) when the state attempts to impose a second punishment for the same offense. Byers at ¶100. However, the double jeopardy prohibition can only be invoked when the conduct of the government involves criminal punishment. State v. Williams (2000), 88 Ohio St.3d 513, 528.
{¶112} In Williams, the Supreme Court of Ohio considered the question of whether the provisions of the 1997 version of
{¶113} As I believe the new registration and notification requirements are civil in nature pursuant to the existing case authority, the Williams holding would still be controlling as to the present version of
{¶114} For these reasons, I dissent from the judgment as well as the majority‘s analysis on Mr. Ettenger‘s retroactivity, ex post facto, double jeopardy, and impairment of contract claims, but concur on the majority‘s analysis on the separation of power and substantive due process issues.