STATE OF OHIO v. BRANDON D. GALLOWAY
Case No. 15CAA040029
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 23, 2015
[Cite as State v. Galloway, 2015-Ohio-4949.]
Hon. Sheila G. Farmer, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14CR-I-11-0530 B. JUDGMENT: AFFIRMED.
For Plaintiff-Appellee:
CAROL HAMILTON O‘BRIEN
DELAWARE CO. PROSECUTOR
ERIC C. PENKAL
140 North Sandusky St.
Delaware, OH 43015
For Defendant-Appellant:
DAVID H. BIRCH
286 South Liberty St.
Powell, OH 43065
{¶1} Appellant Brandon D. Galloway appeals from the March 24, 2015 Judgment Entry on Sentence of the Delaware County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The facts underlying appellant‘s criminal conviction are not in the record before us, other than agreement of the parties at the sentencing hearing that the crime giving rise to this case occurred in 2007.
{¶3} On November 26, 2014, appellant and co-defendant Jackson O. Conn were charged by indictment with one count of aggravated arson pursuant to
{¶4} On February 13, 2015, the parties reached a negotiated plea agreement pursuant to
{¶5} In a Judgment Entry dated February 17, 2015, the trial court found appellant guilty of attempted arson and referred him to Adult Court Services for preparation of the P.S.I.
{¶6} Appellant came before the court for sentencing on March 20, 2015 and was sentenced to a term of community control not to exceed three years.
{¶8} Appellant objected to the registration requirement at sentencing.
{¶9} Appellant now appeals from the judgment entry of sentence, including the notice of the requirement to register as an arson offender.
{¶10} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶11} “THE TRIAL COURT ERRED BY REQUIRING THE APPELLANT TO REGISTER AS AN ARSONIST IN VIOLATION OF THE UNITED STATES CONSTITUTION ARTICLE I, SECTION 10, AND THE OHIO CONSTITUTION ARTICLE II, SECTION 28.”
ANALYSIS
{¶12} Appellant argues the application of the arson offender registry1 to him violates the Ex Post Facto clause of the United States Constitution and the retroactivity clause of the Ohio constitution. We disagree.
Appellant is an “arson offender” within the meaning of the arson offender registration requirements.
{¶13} Effective July 1, 2013, Ohio became one of three states with an arson offender registry.2 Ohio‘s arson offender registry is found in
{¶15} Appellant thus falls squarely within the statutory definition of an arson offender who is required to register as prescribed. He argues, though, that because he committed the arson-related offense prior to July 1, 2013, application of the registration
{¶16} We are not the first Ohio appellate court to examine these issues. Three districts have addressed the arson offender registry. In State v. Caldwell, 1st District Hamilton No. C-130812, 2014-Ohio-3566, 18 N.E.3d 467, the First District Court of Appeals found the arson offender registration requirement does not violate the Ohio Constitution‘s prohibition against retroactive laws as applied to an offender who committed an arson-related offense on June 22, 2013 and was sentenced on November 7, 2013. In State v. Reed, 11th District Lake No. 2013-L-130, 2014-Ohio-5463, 25 N.E.3d 480, the Eleventh District found the arson offender registration requirements do not violate the Ex Post Facto Clause and do not violate the prohibition against retroactive laws as applied to an arson offender who committed the offense on September 4, 2012, was ordered apprehended after he failed to appear for trial, and was ultimately convicted on November 7, 2013. In State v. Mullins, 10th District Franklin No. 14AP-480, 2015-Ohio-3250, the Tenth District did not reach the issue of retroactivity, finding instead the defendant was not an “arson offender” because he was not “convicted” on the effective date of the statute. The Mullins court interprets “convicted” to include having been found guilty and sentenced prior to July 1, 2013; the Mullins defendant had been found guilty but not yet sentenced on the effective date of the statute. Id. at ¶ 11.
{¶17} In the instant case, appellant acknowledges Caldwell and Reed but argues the constitutional analysis in each case is flawed. Both cases examine the arson registry as analogized to registration requirements for sex offenders. Appellant argues the rationales underlying Caldwell and Reed have been superseded by
{¶18} We first note statutes enjoy a strong presumption of constitutionality. “An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State v. Cook, 83 Ohio St.3d 404, 409, 1998-Ohio-291, 700 N.E.2d 570 (1998), citing State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. We turn now to our analysis of whether requiring appellant to register as an arson offender violates the Ex Post Facto Clause or the prohibition against retroactive laws.
The arson offender registry does not violate the Ex Post Facto Clause.
{¶19} Section 10, Article I of the United States Constitution, the Ex Post Facto Clause, prohibits any new punitive measure that creates a material disadvantage to a defendant when applied to a crime that has already been committed. See, 29A Ohio Jurisprudence 3d, Criminal Law: Substantive Principles and Offenses, Section 69 (2015). The Clause bars application of any law inflicting a greater punishment for a crime than the law attached to the crime when it was committed. Id. Retroactive sentencing changes are impermissibly ex post facto if they subject a defendant to a more severe sentence than was available at the time of the offense. Id.
{¶20} The Ex Post Facto Clause applies only to criminal statutes. “* * * [T]he constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). In other words, the Ex Post Facto Clause only
{¶21} The Ohio Supreme Court has applied an “intent-effects test” to determine whether a law is civil or criminal for purposes of Ex Post Facto analysis. See, State v. Cook, 83 Ohio St.3d 404, 415 (1998). The Court first considers whether the legislature intended the law to be remedial (and therefore civil) or penal (and therefore criminal). State v. Williams, 128 Ohio St.3d 65, 2010-Ohio-2453, 93 N.E.2d 770, ¶ 22. If the intent was for the law to be penal, the inquiry ends; if the intent was for the law to be remedial, the Court must look to the law‘s specific effects.
{¶22} The analysis of a law‘s effects is inherently subjective and whether a law‘s effects are remedial or penal is a “matter of degree.” The Ohio Supreme Court upheld Megan‘s Law in Cook because, upon applying the intent-effects test, the statutes were remedial in intent and not so punitive as to violate the Ex Post Facto Clause:
There is no absolute test to determine whether a retroactive statute is so punitive as to violate the constitutional prohibition against ex post facto laws; such a determination is a “matter of degree.” See Morales, 514 U.S. at 509, 115 S.Ct. at 1603, 131 L.Ed.2d at 597. However, the court in Kennedy v. Mendoza-Martinez, [372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)], fashioned useful guideposts for determining whether a statute is punitive. These guideposts include “[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies 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 * * *.” (Footnotes omitted.) Id., 372 U.S. at 168-169, 83 S.Ct. at 567-568, 9 L.Ed.2d at 661.
{¶23} The arson offender registry is intended to be remedial, and its effects have been held to be remedial. In Reed, the Eleventh District found the legislature intended the arson offender registry to be civil in nature and not punitive. Reed, supra, 2014-Ohio-5463 at ¶ 80. Applying the “intent-effects” test, the court further found the effects upon an offender is a “de minimus (sic) administrative requirement.” Id. at ¶ 83. Therefore, the court concluded, the arson offender registry does not violate the Ex Post Facto Clause. Id.
{¶24} Appellant argues the rationale underlying Reed, which relied heavily upon Cook, supra, is flawed because later court decisions have found the sex offender registration requirements to be punitive and thus impermissibly Ex Post Facto. In Cook, the Ohio Supreme Court found that pre-S.B.10 sex offender registration requirements [Megan‘s Law] “serve[ ] the solely remedial purpose of protecting the public;” there is “no clear proof [the law] is punitive in its effect;” and “notification requirements may be a detriment to registrants, but the sting of public censure does not convert a remedial statute into a punitive one.” Cook, 83 Ohio St.3d at 423. Appellant relies upon a case from the Eleventh District, State v. Strickland, which found the sex offender registration requirements to be punitive. 11th Dist. Lake No. 2008-L-034, 2009-Ohio-5424, ¶ 48. Strickland addressed sex offender registration requirements post-S.B.10, which differed significantly from those examined in Cook. Most troubling to the Strickland court was the creation of a public database:
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.
R.C. 2950.081 . Not only does the public have unfettered access to an offender‘s personal information but, under Senate Bill 10, an offender has a legal duty to provide more information than was required under formerR.C. Chapter 2950 .
State v. Strickland, 11th Dist. Lake No. 2008-L-04, 2009-Ohio-5424, ¶ 25, aff‘d on other grounds sub nom. In re Sexual-Offender Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753, 933 N.E.2d 801, ¶ 25, order vacated in part on reconsideration sub nom. State v. Hitchcock, 127 Ohio St.3d 1201, 2010-Ohio-4980, 936 N.E.2d 45, ¶ 25.
{¶25} Comparing post-S.B.10 sex offender registration requirements to the arson offender registration requirements is not a perfect analogy. The schemes are similar in some respects but significantly different in others. Of consequence to us is the question of public access: the arson offender registry is not a public record and is not accessible to the general public. Any individual can access the sex offender registry. The arson offender registry, though, exists as a tool created for, maintained by, and available only to arson investigators and law enforcement.
{¶26} We further agree with Reed that the arson offender registry is not “excessive with respect to this purpose.” See Reed, 2014-Ohio-5463 at ¶ 83. The offender is required to register only in his or her county of residence. The relatively nominal initial registration fee and subsequent annual fees cover the costs of maintaining the database. Appellant points out that failure to register as required is a felony of the fifth degree, but we find this is not dispositive of the penal vs. remedial issue. The criminal penalty lends enforceability to the registration requirements yet, as Caldwell points out, violation thereof is “a low-level felony that carries a presumption of probation.” Caldwell, supra, 2014-Ohio-3566 at ¶ 34;
{¶27} In conclusion, our analysis brings us to the same conclusion as that reached in Reed: the arson offender registry is remedial and does not violate the Ex Post Facto Clause of the U.S. Constitution. Reed, 2014-Ohio-5463 at ¶ 83.
The arson offender registry is not impermissibly retroactive.
{¶28} The Ohio Constitution prohibits retroactive legislation and the Ohio Supreme Court has articulated a two-part framework for determining whether a statute is impermissibly retroactive under Section 28, Article II.
{¶29} Because
{¶30} If we find a “clearly expressed legislative intent” that a statute apply retroactively, we proceed to the second step and analyze whether the challenged statute is substantive or remedial. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 10, citing Cook, 83 Ohio St.3d at 410; see, also, Van Fossen, supra, 36 Ohio St.3d 100, at paragraph two of the syllabus.
{¶31} Our first question is thus whether the General Assembly has specified that the arson offender registry applies retroactively. Van Fossen, 36 Ohio St.3d at 106. It is evident from the definition of “arson offender” that the statute is intended to apply retroactively, i.e., to conduct committed before its enactment. See, Caldwell, 2014-Ohio-3566 at ¶ 20. Such is the procedural posture of appellant: he committed the offense in 2007 but was not convicted until after the effective date of the arson registry.
{¶32} We turn next to the question whether the arson offender registry is substantive or remedial. Specifically, does the law take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations already past? Van Fossen, 36 Ohio St.3d at 106. If so, the law is “substantive” and must be deemed impermissibly retrospective or retroactive. Id., Cincinnati v. Seasongood, 46 Ohio St. 296, 303, 21 N.E. 630 (1889).
{¶34} We are persuaded by the thorough analysis of Caldwell concluding that although the arson offender registry imposes new duties and burdens on arson offenders, those burdens are not substantive in nature. Caldwell, supra, 2014-Ohio-3566 at ¶ 30. Appellant‘s argument does not substantively address Caldwell, which finds that even under the post-S.B.10 Williams analysis, the arson offender registry statues are remedial and not punitive because they are overall less onerous than sex offender registration requirements:
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 *476 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.
State v. Caldwell, 2014-Ohio-3566, 18 N.E.3d 467, 475-76, ¶ 34 (1st Dist.)
{¶36} We conclude by framing the constitutional analyses within the facts of this case: appellant committed attempted arson in 2007. At that time, the arson offender registry did not exist. However, “[e]xcept with regard to constitutional protections against ex post facto laws * * *, felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation.” Caldwell, 2014-Ohio-3566 at ¶ 22, citing Cook at 412, internal citation omitted. Thus, appellant is not a subject of the constitutional infirmities the Ex Post Facto Clause and retroactivity prohibition guard against. We agree, therefore, that “[b]ecause appellant had no expectation of finality with regard to any duties that may or may not have attached following his conviction, he does not have a substantive right in this regard; the [arson offender registry] is remedial in nature, and the General Assembly may retroactively impose its provisions without running afoul of the Ohio Constitution.” Caldwell, 2014-Ohio-3566 at ¶ 35.
{¶37} The trial court did not err in notifying appellant of his duty to register as an arson offender and his sole assignment of error is overruled.
{¶38} Appellant‘s sole assignment of error is overruled and the judgment of the Delaware County Court of Common Pleas is affirmed.
By: Delaney, J. and
Farmer, P.J.
Baldwin, J., concur.