STATE OF OHIO, Plaintiff-Appellee, vs. SAMANTHA M. FISHER, Defendant-Appellant.
Case No. 16CA3553
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
8-14-17
2017-Ohio-7260
ABELE, J.
DECISION AND JUDGMENT ENTRY; CRIMINAL APPEAL FROM COMMON PLEAS COURT
Mark J. Miller, Columbus, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
ABELE, J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment filed by Samantha Fisher, defendant below and appellant herein. Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
THE TRIAL COURT ERRED IN NOT OVERRULING APPELLANT‘S TIER III SEX OFFENDER CLASSIFICATION BECAUSE THE MANDATORY SEX OFFENDER CLASSIFICATION IMPOSED UNDER SENATE BILL 10 CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AND VIOLATES THE EIGHTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION .
SECOND ASSIGNMENT OF ERROR:
THE TIER III SEX-OFFENDER REQUIREMENTS IMPOSED ON APPELLANT ARE UNCONSTITUTIONAL BECAUSE SENATE BILL 10 VIOLATES THE SEPARATION OF POWERS DOCTRINE.
THIRD ASSIGNMENT OF ERROR:
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT FAILED TO OVERRULE APPELLANT‘S TIER III SEX OFFENDER CLASSIFICATION BECAUSE A SUFFICIENT NEXUS HAS NOT BEEN ESTABLISHED BETWEEN THE AUTOMATIC TIER III CLASSIFICATION OF THOSE IN VIOLATION OF
R.C. 2907.03(A)(7) , WHEN APPLIED TO INDIVIDUALS LIKE APPELLANT, AND THE GOVERNMENT‘S INTEREST IN PREVENTING TEACHERS FROM TAKING UNCONSCIONABLE ADVANTAGE OF STUDENTS.
{¶ 2} On November 6, 2015, the Ross County Grand Jury returned an indictment that charged appellant with two counts of sexual battery in violation of
{¶ 3} On April 5, 2016, appellant withdrew her guilty plea and pled guilty to both counts. On May 3, 2016, current counsel entered his appearance as counsel of record for appellant, and on May 6, 2016, appellant filed a motion to withdraw her plea. Appellant argued that her prior attorney informed her that sexual battery carried a 10-year registration period, not lifetime registration, and did not inform her of community notification. Appellant also objected to the Tier III Sex Offender Classification because, appellant argued, the classification violates due process, separation of powers, and constitutes cruel and unusual punishment.
{¶ 4} On May 23, 2016, the trial court held a hearing for three purposes: (1) to consider the motion to withdraw her plea, (2) to conduct appellant‘s sexual-offender classification hearing, and (3) to determine appellant‘s criminal disposition. The court first denied the motion for leave to withdraw her plea, noting that the trial court had properly notified appellant of the lifetime requirements at the change of plea hearing. The trial court then moved on to the classification hearing. The court noted that appellant violated
{¶ 5} Turning to the disposition, the victim urged that appellant not be subject to the lifetime registration and notification requirements. Once again, the court indicated that it had no discretion regarding the mandatory classification. The judge went on to state “I can‘t help but look at your life though and think it‘s been exemplary up to this point. You did a lot of things that would make me proud if I were your parent of what you‘ve done in your life and I think that is remarkable for you.” However, the court went on to say, “Unfortunately on the other side of the coin is the fact that you took advantage of a child that was in a horrible situation. His life circumstances made him, perhaps, more vulnerable than most children would be in his position. There‘s also the fact that we have to send a message to other teachers and other people in positions of authority that you can‘t abuse and take advantage of your position of authority and do such things.”
{¶ 6} With that, the court sentenced appellant to serve 60 days in jail, but did allow work release, followed by 90 days of house arrest with work privileges, and required her to perform 200 hours of community service to be completed within 12 months. Further, the judge ordered appellant
{¶ 7} On May 25, 2016, appellant filed a motion to stay the registration sex offender classification, registration, and notification requirements pending an appeal. The trial court denied the request. On June 27, 2016, appellant filed a motion to stay registration requirements pending the disposition of her appeal with this court. On July 19, 2016, this court denied the motion.
I. STANDARD OF REVIEW
{¶ 8} “A statute may be challenged as unconstitutional on the basis that it is invalid on its face or as applied to a particular set of facts.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17. Here, appellant challenges the Tier III classification as unconstitutional as applied to her, i.e., a twenty-two-year-old adult teacher indicted for offenses committed against a sixteen-year-old student aide. Thus, we use a de novo standard of review to assess errors based upon violations of constitutional law. State v. Sidam, 4th Dist. Adams No. 15CA1014, 2016-Ohio-7906, ¶ 19, citing State v. Burgette, 4th Dist. Athens No. 13CA50, 2014-Ohio-3483, ¶ 10; see also State v. Coburn, 4th Dist. Ross No. 08CA3062, 2009-Ohio-632, ¶ 6.
{¶ 9} The statutes enacted by the General Assembly are entitled to a “strong presumption of constitutionality.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. Thus, “if at all possible, statutes must be construed in conformity with the Ohio and the United States Constitutions.” State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991). The
{¶ 10} In the case sub judice, appellant pled guilty to two counts of sexual battery in violation of
{¶ 11} Senate Bill 10 created a three-tier sex-offender-classification system.
II. FIRST ASSIGNMENT OF ERROR
{¶ 12} In her first assignment of error, appellant asserts that the trial court erred by not overruling her Tier III sex offender classification because the Senate Bill 10 mandatory sex offender
{¶ 13} While most states addressing Eighth Amendment challenges to mandatory sex-offender classifications for adults have dismissed those challenges based on their findings that the registration schemes are remedial rather than punitive, the Supreme Court of Ohio has held that the enhanced sex-offender reporting and notification requirements contained in
A. Federal Law
{¶ 14} The
{¶ 15} When considering Eighth Amendment challenges, and whether to adopt a categorical rule, the United States Supreme Court has taken the following approach: “The Court first considers
National Consensus
{¶ 16} With regard to the national consensus prong of the analysis, appellant contends that few people would find it reasonable to require an individual to register as a sex offender when the offender does not share any of the characteristics of a sex offender and when an extremely low risk exists for reoffending, citing State v. Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, ¶ 77 (Pfeifer, J., dissenting). Appellant argues that she engaged in consensual sex with the student aide, and that the trial judge seemed reluctant to classify her as a Tier III sex offender. However, as the state notes, the pre-sentence investigation (PSI) indicated that while appellant‘s ORAS score was a 7, which is a low risk of reoffending, the PSI also indicated that appellant “has some criminal attitudes, sometimes feels a lack of control over the events in her life, and she agrees with ‘do unto others before they do unto you.‘”
{¶ 17} Generally, a national consensus favors similar sex offender registration requirements. See, e.g., Blankenship at ¶ 36 (Indeed, such sanctions are now the norm, citing People v. Temelkoski, 307 Mich.App. 241, 262, 859 N.W.2d 743 (2014) (“all 50 states and the federal government have enacted some form of sex offender registration and notification provisions.“)); Cook, 83 Ohio St.3d at 406 (all 50 states have a sex offender registration law and Ohio has had one in place since 1963). Further, although appellant does not have a prior criminal history, she was a teacher, a position that the General Assembly, in enacting the subsection regarding teachers, coaches and administrators, has deemed to have special responsibilities due to the authority that teachers exert over their students. Thus, we do not find a national consensus would object to appellant‘s classification as a Tier III sex offender with its attendant registration and notification requirements.
{¶ 18} We now turn to the second step of our analysis.
Does the Punishment Violate the Constitution?
{¶ 19} In determining whether the punishment violates the Constitution, the United States Supreme Court has set forth a three-step analysis: (1) the culpability of the offender in light of the crime and characteristics, (2) the severity of the punishment, and (3) the penological justification. Graham, 560 U.S. at 67-68.
Culpability of the Offender
{¶ 20} The first consideration in the independent review is assessing the offender‘s culpability. Blankenship, 145 Ohio St.3d 221 at ¶ 23. As a matter of law, appellant‘s conviction for sexual battery makes her a sex offender.
{¶ 21} Appellant also argues that the victim in this case consented to the sexual conduct with appellant, that no evidence indicates that the victim suffered any irreparable harm, and that appellant is unlikely to commit another criminal offense. In Blankenship, the court noted that the defendant was six years older than the victim and, therefore, deemed more culpable and more deserving of punishment. Blankenship at ¶ 24. Here, appellant is also six years older than the victim. While appellant contends that the conduct was consensual, the fact remains that appellant, a teacher, took advantage of an underage student. Appellant also indicated in the PSI report that she knew that the victim‘s father had recently died, and she took his number to alert him if anyone was looking for him when he was in areas of the school for which he had no authorization. Appellant was the first to text him, and he came to her home twice where the sexual conduct occurred. Appellant is indeed culpable for the criminal acts that she committed.
Severity of the Punishment
{¶ 22} The second consideration is the severity of the punishment. Appellant, an adult
{¶ 23} In Blankenship, the Tier II offender was 21 years of age and the victim was 15 at the time the relationship began. The court concluded “[o]ur research reveals no case in which similar registration and verification requirements have been held to be cruel and unusual punishment.” Blankenship at ¶ 27. Appellant also argues that she is a low risk offender. The Blankenship court rejected a similar argument when the defendant presented evidence from a psychologist that he presented a “low risk” of re-offending. The Blankenship court held that while the requirements to register every 180 days for 25 years are burdensome, it did not rise to a constitutional level. Id. While appellant‘s registration requirements are more onerous than a Tier III offender, we find no authority to support the view that the requirements rise to the level of cruel and unusual punishment.
Penological Justifications
{¶ 24} The final consideration in an Eighth Amendment analysis is to assess the penological justifications for the sentencing practice. Graham, 560 U.S. at 67. As the Blankenship court noted, “[t]he stated purpose of S.B. 10 and its registration and community-notification requirements is ‘to protect the safety and general welfare of the people of this state.’
B. Ohio Law
{¶ 25} The
{¶ 26} Ohio courts have held that the reporting requirements for Tier I and Tier II sex offenders do not constitute cruel and unusual punishment. See, e.g., State v. Conley, 9th Dist. Summit No. 27869, 2016-Ohio-5310; State v. Bradley, 1st Dist. Hamilton No. C-100833, 2011-Ohio-6266. This court sees no reason not to apply this rationale to Tier III offenders. With
III. Second Assignment of Error
{¶ 27} In her second assignment of error, appellant asserts that the Tier III sex-offender requirements are unconstitutional because Senate Bill 10 violates the separation of powers doctrine. Appellant argues that under Senate Bill 10, the judiciary‘s function is simply ministerial when issuing a judgment to validate what the legislative branch has already finalized.
{¶ 28} Although not explicitly stated in Ohio‘s Constitution, “[t]he separation-of-powers doctrine implicitly arises from our tripartite democratic form of government and recognizes that the executive, legislative, and judicial branches of our government have their own unique powers and duties that are separate and apart from the others.” State v. Thompson, 92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001), citing City of Zanesville v. Zanesville Tel. & Tel. Co., 63 Ohio St. 442, 59 N.E. 109 (1900), paragraph one of the syllabus. “It has long been recognized in this state that the General Assembly has the plenary power to prescribe crimes and affix penalties.” State v. Morris, 55 Ohio St.2d 101, 112, 378 N.E.2d 708 (1978).
{¶ 29} The Third District considered the question of whether S.B. 10 is unconstitutional, as applied to those convicted of sexual battery in violation of
{¶ 30} Now, however, the classification discretion has been removed from the judiciary and vested in the General Assembly. The Supreme Court also later declared the Act punitive in Williams. The Ritchey court concluded that requiring offenders convicted of sexual battery in violation of
{¶ 31} Moreover, this court has held that a Tier III sex offender classification “is nothing more than a collateral consequence arising from *** criminal conduct, and because [the defendant] has no reasonable expectation that [the defendant‘s] ‘criminal conduct would not be subject to future
IV. THIRD ASSIGNMENT OF ERROR
{¶ 32} In her third assignment of error, appellant asserts that the trial court erred when it failed to overrule appellant‘s Tier III sex offender classification because a sufficient nexus had not been established between the automatic Tier III classification of those in violation of
{¶ 33} The state first points out that this issue was not raised or addressed at the trial court level. “The failure to raise at the trial court level the issue of constitutionality of a statute or its application, which is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. However, reviewing courts do have discretion to consider a forfeited constitutional challenge to a statute. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. “Even when waiver is clear, the court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.
{¶ 34} Turning to the potential merits of appellant‘s argument, the
{¶ 35} Appellant raises an as-applied constitutional challenge to the application of
{¶ 36} The rational-basis test involves a two-step analysis. “We must identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260, 267, 652 N.E.2d 952 (1995); Pickaway Cty. Skilled Gaming v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 19.
State Interest
{¶ 37} With regard to the intent prong of the analysis, we highlight the Supreme Court‘s recent analysis of a different subsection of
{¶ 38} The Supreme Court noted that the General Assembly created the offense of sexual battery,
{¶ 39} The court went on to find that the state does have a compelling interest to protect minors from sexual coercion and an interest to prohibit peace officers from abusing their authority in order to sexually exploit minors. However, the court struck down that subsection of the statute, holding that it is not rationally related to a legitimate governmental purpose, and thus declared it to
{¶ 40} Certain aspects of State v. Mole are relevant to this case. For example, the court stated that ”
{¶ 41} However, rather than calling for the same result in this case, we believe that Mole in fact supports our view. First, Mole involved an equal protection challenge both under the United States Constitution and the Ohio Constitution, and the Court focused heavily on the fact that the court has autonomy under the Ohio Constitution “to interpret our Constitution to afford greater rights to our citizens when we believe that such an interpretation is both prudent and not inconsistent with the intent of the framers.” Id. at ¶ 21. In the case sub judice, appellant challenges the statute under the United States Constitution. Further, Mole reaffirmed that “statutes are presumed to be constitutional and * * * courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.” Id. at ¶ 27. Moreover, “[t]he party challenging the constitutionality of a statute ‘bears the burden to negate every conceivable basis that might support the legislation.‘” Id.
{¶ 42} Most important, Mole reviewed the historical background of
{¶ 43} The court noted that the statute was amended in response to incidents involving inappropriate sexual conduct committed by adults who had special authoritative relationships with minors or other vulnerable populations, but who were not covered by subdivisions (1) through (6) of the statute. Id. at ¶ 35. The court concluded that the foregoing history “demonstrates that the purpose of
Rationally Related to Legitimate State Interest
{¶ 44} The second prong of the Equal Protection analysis is whether the legislative distinction bears a rational relationship to the legitimate state interest. The court held that the sexual
{¶ 45} While the court found that
{¶ 46} Although the appellant describes the sexual conduct in the case at bar as consensual, it does not erase the fact that appellant was employed as a teacher, an authority figure who the General Assembly has deemed is, and should be, held to a higher standard due to the control teachers exert in student‘s lives. This is the sort of behavior the legislature intended to punish, if not thwart, by specifying the teacher, coach, administrator portion of
{¶ 47} Consequently, in this case we hold that
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment is affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty-day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Supreme Court of Ohio in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY: Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.