State v. GrateState v. Grate
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2008 CV 195.
Judgment: Reversed.
Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Respondent-Appellee).
Samuel F. Bluedorn, Bluedorn & Ohlin, L.L.C., 144 North Park Avenue, #310, Warren, OH 44481 (For Defendant-Petitioner-Appellant).
DIANE V. GRENDELL, J.
{¶1} Appellant, Lloyd Allen Grate, appeals the judgment of the Trumbull County Court of Common Pleas, denying his Petition to Contest Application of the Adam Walsh Act. The fundamental principle of the “separation of powers” doctrine as written by our forefathers in the United States Constitution is inviolate, and, therefore, mandates reversal of the decision of the court below. However, Grate must still comply with the notification and registration requirements under his original sentence.
{¶3} On February 24, 2003, Grate was sentenced to serve concurrent, two-year prison terms for each count, and ordered to register for a period of ten years as a sexually oriented offender.
{¶4} On November 26, 2007, the Office of the Attorney General issued a Grate Notice of New Classification and Registration Duties Tier II Sex Offender (Adult). Grate was advised “of changes to Ohio‘s Sex Offender Registration and Notification Act (
{¶5} On January 18, 2008, Grate filed a Petition to Contest Application of the Adam Walsh Act, in the Trumbull County Court of Common Pleas, the county in which he resides and currently registers. Grate filed an Amended Petition on February 12, 2008.
{¶6} The State moved for summary judgment on Grate‘s Petition.
{¶7} On June 23, 2008, the trial court granted the State‘s Motion.
{¶8} On July 1, 2008, Grate filed his Notice of Appeal and raises the following assignment of error: “The trial court erred finding
{¶9} Within this sole assignment of error, Grate challenges the constitutionality of amended
{¶10} Grate‘s initial contention is that the retroactive application of amended
{¶11} “Although 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, at ¶22. “The essential principle underlying the policy 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 by either of the other departments, and further that none of them ought to possess directly or indirectly an overruling influence over the others.” State ex rel. Bryant v. Akron Metro. Park Dist. (1929), 120 Ohio St. 464, 473.
{¶12} The doctrine of separation of powers limits the ability of the General Assembly to exercise the powers of and extert an influence over the judicial branch of
{¶13} A determination of an offender‘s classification under former
{¶15} The State contends that the “new law does not order courts to reopen a final judgment, but *** simply changes the classification scheme based on the prior judicial adjudication.” Moreover, “the classification of sex offenders into categories has always been a legislative mandate, not an inherent power of the courts.” In re Smith, 3rd Dist. No. 1-07-58, 2008-Ohio-3234, at ¶39, citing Slagle v. State, 145 Ohio Misc.2d 98, 2008-Ohio-593, at ¶21. According to these cases, “the Assembly has enacted a new law, which changes the different sexual offender classifications and time spans for registration: requirements [sic], 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.” Slagle, 2008-Ohio-593, at ¶21.
{¶16} It does not matter that the legislature has the authority to enact or amend laws requiring sex offenders to register or that the current Sex Offender Act does not order the courts to reopen final judgments. The fact remains that the General Assembly “cannot annul, reverse or modify a judgment of a court already rendered.” Bartlett, 73 Ohio St. at 58. Grate‘s reclassification, as a practical matter, nullifies that part of the court‘s February 24, 2003 Judgment ordering him to register for a period of ten years as a sexually oriented offender. To assert that the General Assembly has authority to create a new system of classification does not solve the problem that Grate‘s original classification constituted a final judgment. There is no exception to the rule that final
{¶17} Grate‘s first argument under his sole assignment of error is with merit.
{¶18} Grate next argues that Ohio‘s current Sex Offender Registration and Notification Act violates
{¶19} To determine the nature of a particular statute, it is necessary to consider both the legislative intent in enacting the statute and the effect of the statute in practice. This analysis is known as the “intent-effects test.” Id. “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.” Smith v. Doe (2003), 538 U.S. 84, 92, quoting Kansas v. Hendricks (1997), 521 U.S. 346, 361, quoting United States v. Ward (1980), 448 U.S. 242, 248-249.
{¶20} Enactments of the Ohio Generally Assembly are presumed constitutional. State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, at paragraph one of the syllabus. The “presumption applies to amended
{¶21} The legislature‘s intent in passing the Sex Offender Registration and Notification Act, expressed in the Act itself, is to provide “adequate notice and information about offenders *** who commit sexually oriented offenses or who commit child-victim oriented offenses,” so that “members of the public and communities can develop constructive plans to prepare themselves and their children for the offender‘s or delinquent child‘s release from imprisonment, a prison term, or other confinement or detention.”
{¶23} Grate maintains that the intent and effect of the Act are, nonetheless, punitive. Grate notes that the Act‘s provisions are codified within Ohio‘s Criminal Code, Title 29; the failure to comply with the registration and notification provisions subjects the person to criminal penalties; and, under the prior law, a person‘s classification was tied to a determination that they posed an ongoing threat to the community, while under the current amendments, one‘s classification “flow[s] directly from the offense of conviction.” We disagree.
{¶24} The fact that the Act is contained in the Criminal Code and prescribes criminal penalties for failure to comply does not render it punitive. Both of these provisions were part of the prior version of the Act upheld by the Ohio Supreme Court in Cook. Moreover, the United States Supreme Court has held that neither of these characteristics necessarily renders a civil regulatory statute punitive. Smith, 538 U.S. at 94 (“[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one“), and 96 (“[i]nvoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive“).
{¶25} Nor does the fact that one‘s classification now “flow[s] directly from the offense of conviction,” rather than a judicial determination as to the likelihood of recidivism, alter the legislative intent or the nature of the Act. It is well-established that “[t]he Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular
{¶26} A similar argument was previously raised, and rejected, following the 2003 amendments to the Sexual Offender and Registration and Notification Act as part of Am.Sub.S.B. No. 5. The 2003 amendments “modifie[d] most of the determinations, declarations, recognitions, and findings of the General Assembly regarding the SORN Law that [formally applied] only regarding sexual predators and habitual sex offenders so that they instead apply regarding all sex offenders, offenders who commit sexually oriented offenses, child-victim offenders, and offenders who commit a child-victim offense ***.” Ferguson, 2008-Ohio-4824, at ¶7 (citation omitted). Thus, disabilities that previously attached to persons deemed “likely to engage in the future in one or more sexually oriented offenses” were expanded to apply to all sex offenders. Cf. former
{¶27} The Ohio Supreme Court recognized that these “changes were driven by the General Assembly‘s finding that all sex offenders pose a risk of engaging in further sexually abusive behavior after being released from prison and that the protection of the public from those offenders is a paramount governmental interest.” Id. Similarly, the current changes to the Act reflect the understanding that all sex offenders, by virtue of having committed “sexually oriented offenses,” pose a risk of committing further sexually oriented offenses. This understanding is consistent with stated aim of protecting the public from the danger of recidivism by convicted sex offenders through the public dissemination of information about the offenders.
{¶28} Finally, we note that the other appellate districts that have considered this issue have concluded that the registration and notification requirements of the Act remain civil and nonpunitive in nature after the amendments enacted by Senate Bill 10. See State v. Omiecinski, 8th Dist. No. 90510, 2009-Ohio-1066, at ¶¶34-42, and the cases cited therein.
{¶29} Accordingly, the amended version of
{¶30} Grate next maintains the retroactive application of Ohio‘s current Sex Offender Registration and Notification Act violates
{¶31} Specifically, Grate claims the current law “eliminates the pre-existing right of citizens to reside where they wish and imposes new obligations and burdens which did not exist at the time [he] committed his offense.”
{¶32} With respect to the residency restrictions, codified at
{¶34} For these reasons, amended version of
{¶35} Grate‘s fourth argument is that his reclassification as a Tier II Sex Offender constitutes multiple punishment under the double jeopardy clauses of the United States and Ohio Constitutions.
{¶36} Since the Sex Offender Act‘s notification and registration requirements do not constitute punishment, they do not implicate the double jeopardy provisions of either the United States or Ohio Constitutions. Williams, 88 Ohio St.3d at 528, citing Cook, 83 Ohio St.3d at 420.
{¶37} In his fifth argument, Grate asserts that the residency restrictions contained in the Sex Offender Act, whereby he is barred from residing within 1000 feet of a school, pre-school, or child day-care center, see
{¶38} The State counters that Grate lacks standing to challenge these restrictions, in the absence of any evidence of an injury in fact or an actual deprivation of his property rights or his right to privacy.
{¶39} “A person has no standing to attack the constitutionality of an ordinance unless he has a direct interest in the ordinance of such a nature that his rights will be adversely affected by its enforcement.” Anderson v. Brown (1968), 13 Ohio St.2d 53, at paragraph three of the syllabus. “The constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision.” Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 169, at syllabus.
{¶40} In the present case, Grate has not alleged or otherwise argued that the residency restrictions of
{¶42} Grate‘s final argument is that that his reclassification constitutes a breach of his plea agreement with the State of Ohio. According to the Finding on the Guilty Plea to Amended Indictment, journalized in the underlying case on Febraury 20, 2003, the “agreement upon which [Grate‘s] plea is based is as follows: Defendant to waive PSI. State recommends two (2) years incarceration on each count, to be served concurrently to each other. State to Nolle Count 1 of the Indictment. Defendant will be required to register as a sexually oriented offender. State will oppose judicial release.”
{¶43} “A plea bargain itself is contractual in nature and subject to contract-law standards.” State v. Butts (1996), 112 Ohio App.3d 683, 686. Ordinarily, if one side violates a term of the plea agreement, the other party has a right to pursue certain remedies, including rescission of the agreement. State v. Heart, 8th Dist. No. 84531, 2005-Ohio-107, at ¶8. However, in applying the elementary rules of contract law to plea agreements, the courts of this State have held that an alleged breach of such an agreement cannot be based upon an action which occurs following the performance of the various terms. See State v. Pointer, 8th Dist. No. 85195, 2005-Ohio-3587, at ¶9. That is, once a criminal defendant has entered his guilty plea and has been sentenced by the trial court, a breach of contract can no longer occur because both sides have fully performed their respective obligations under the plea agreement. State, 145 Ohio Misc.2d 98, at ¶59.
{¶45} Grate‘s sole assignment of error has merit with respect to his argument that his reclassification under the amended Sex Offender Act violates the doctrine of separation of powers.
{¶46} Under this holding, Grate will have to complete his original sentence and continue registering as a sexually oriented offender pursuant to the trial court‘s February 24, 2003 Judgment Entry.
{¶47} We note that the General Assembly‘s purpose in enacting the Adam Walsh Act, “to provide increased protection and security for the state‘s residents from persons who have been convicted of, or found to be delinquent children for committing, a sexually oriented offense or a child-victim oriented offense,” is properly realized in its application to cases pending when enacted and those subsequently filed. Section 5, S.B. No. 10. Grate‘s sentence, however, had become final several years prior to the Adam Walsh Act. As such, it is beyond the power of the Legislature to vacate or modify.1 The United States Supreme Court has stated that the principle of separation of powers is violated by legislation which “depriv[es] judicial judgments of the conclusive effect that they had when they were announced” and “when an individual final judgment is legislatively rescinded for even the very best of reasons.” Plaut v. Spendthrift Farm, Inc. (1995), 514 U.S. 211, 228 (emphasis sic). To the extent the Adam Walsh Act attempts to modify existing final sentencing judgments, such as Grate‘s sentence, it
{¶48} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas, reclassifying Grate as Tier II Sex Offender, is reversed; however, Grate shall continue registering as a sexually oriented offender pursuant to the trial court‘s February 24, 2003 Judgment Entry. Costs to be taxed against appellee.
TIMOTHY P. CANNON, J., concurs in judgment only with Concurring Opinion.
COLLEEN MARY O‘TOOLE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
TIMOTHY P. CANNON, J., concurring in judgment only.
{¶49} I would follow this court‘s opinion in State v. Ettenger, 11th Dist. No. 2008-L-054, 2009-Ohio-3525. Thus, I disagree with the majority‘s opinion regarding Grate‘s breach of contract argument. Id. at ¶60-67. See, also, State v. Spangler, 11th Dist. No. 2008-L-062, 2009-Ohio-3178, at ¶65.
{¶50} Grate had an expectation of finality that his prior adjudication as a sexually-oriented offender would result in a finite, ten-year reporting period. This expectation of finality was the result of an agreement between Grate and the state of Ohio.
{¶51} As stated in the finding on guilty pleas to amended indictment:
{¶53} “Reclassification by the state legislature clearly may have impacted [Grate‘s] decision to enter a plea and forego his right to trial.” State v. Ettenger, 2009-Ohio-3525, at ¶66.
{¶54} Furthermore, I do not believe that the application of the Adam Walsh Act to Grate violates the doctrine of separation of powers. See State v. Ettenger, 2009-Ohio-3525, at ¶75-79. Instead, I would hold that application of the Adam Walsh Act to Grate violates the Ex Post Facto Clause of the United States Constitution, the Retroactivity Clause of the Ohio Constitution, and the Double Jeopardy Clauses of the Ohio and United States Constitutions. Id. at ¶10-59, 68-74.
{¶55} The judgment of the trial court should be reversed.
COLLEEN MARY O‘TOOLE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.
{¶56} I concur thoroughly with the majority‘s well-reasoned analysis of the separation of powers issue presented by this appeal. I also concur that, on the facts of this case, the issue of AWA‘s residency restrictions is one we should not reach, though I premise this on ripeness, rather than standing. However, as I do believe that AWA, as
{¶57} “The ex post facto clause extends to four types of laws:
{¶58} “’ “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.)
{¶59} As the majority notes, Ohio courts apply the “intent-effects” test in analyzing whether a statute violates the ban on ex post facto laws. My own application of the test indicates both the intent, and the effect, of AWA are punitive, rendering it unconstitutional when applied to crimes committed prior to the statute‘s enactment, as in this case.
{¶60} In this case, the Ohio General Assembly specifically denominated the remedial purposes of AWA. See, e.g., Swank, supra, at ¶73-80. In Smith v. Doe, supra, the United States Supreme Court found similar declarations by the Alaskan legislature highly persuasive. Id. at 93. However, a closer reading of AWA‘s provisions casts doubt upon the legislature‘s declaration.
{¶62} Second, those portions of AWA controlling the sentencing of sex offenders indicates that the classification is part of the sentence imposed -- and thus, part of the offender‘s punishment. See, e.g.,
{¶63} Both the placement of AWA within the Revised Code, and the language of the statute, indicates a punitive, rather than remedial, purpose.1 Further, as Judge James J. Sweeney of the Eighth Appellate District recently noted regarding the intent of AWA:
{¶64} “*** the General Assembly expressed a remedial intent in the legislation.
{¶65} For all these reasons, I would find that the intent of AWA is punitive, rather than remedial.
{¶66} Moreover, an exploration of the effects of AWA reveals that it is a punitive, criminal statute, rather than remedial and civil. In exploring the effects of a statute for ex post facto purposes, we are required to apply the seven part test enunciated by the United States Supreme Court in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169. Smith v. Doe, supra, at 97.
{¶67} Regarding the first factor, AWA 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.
{¶68} 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
{¶69} AWA significantly limits where an offender may live. The right to live where one wishes is a fundamental attribute of personal liberty, protected by the United States Constitution. Omiecinski, supra, at ¶82. (Sweeney, J., dissenting in part.)
{¶70} AWA 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.
{¶71} Thus, AWA imposes significant disabilities and restraints upon offenders, which indicates it is an unconstitutional ex post facto law under the first Kennedy factor.
{¶72} The second Kennedy factor requires us to consider whether AWA 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 AWA the functional equivalent of community control sanctions.
{¶73} Under the third Kennedy factor, we must consider whether the registration and notification requirements of AWA only come into play upon a finding of scienter. Clearly they do. There are strict liability sex offenses, such as statutory rape.
{¶74} The fourth Kennedy factor requires us to determine whether the registration and notification requirements of AWA 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 v. Alaska, supra, at 1013, fn. 107, citing Artway v. Attorney Gen. of N.J. (C.A.3., 1996), 81 F.3d 1235, 1255.
{¶75} 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.
{¶76} 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 members of the public to identify potential dangers to
{¶77} Thus, AWA‘s requirements fulfill the traditionally punitive roles of retribution and deterrence.
{¶78} The fifth Kennedy factor questions whether the conduct to which a law applies is already a crime. I again find the reasoning of the court in Doe v. Alaska, 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:
{¶79} “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 v. Alaska at 1015. (Footnote omitted.)
{¶80} Similarly, only conviction for, or a guilty plea to, a sex offense (and kidnapping of a minor) triggers the provisions of AWA. Consequently, the fifth Kennedy factor supports the conclusion that AWA is punitive in effect.
{¶81} Under the sixth Kennedy factor, we are required to consider whether the law has some rational purpose other than punishment. Clearly AWA has an important remedial purpose, by keeping law enforcement and the public aware of potential recidivists amongst sex offenders. But the seventh Kennedy factor requires analysis of
{¶82} Consequently, I would find that both AWA‘s intent, and effect are punitive, and that it is an unconstitutional ex post facto law regarding Mr. Grate.
{¶83} I further believe that AWA violates the Ohio Constitution‘s ban on retroactive laws.
{¶84} “‘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.)
{¶85} A statute is “substantive” if it: (1) impairs or takes away vested rights; (2) affects an accrued substantive right; (3) imposes new burdens, duties, obligations or liabilities regarding a past transaction; (4) creates a new right from an act formerly giving no right and imposing no obligation; (5) creates a new right; or (6) gives rise to or takes away a right to sue or defend a legal action. Van Fossen, supra, at 107. A later
{¶86} The foregoing establishes that AWA is an unconstitutional retroactive law, as applied to Mr. Grate. 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.
{¶87} However, an analysis under
{¶88} When analyzing whether a law violates the ban against the impairment of contracts, this court applies a tripartite test. Trumbull Cty. Bd. of Commrs. v. Warren (2001), 142 Ohio App.3d 599, 602-603. First, there must be a determination if a contractual relation exists. Id. at 602. If it does, we must ascertain whether a change in the law impairs that relationship. Id. at 602-603. Finally, we must determine if that impairment is substantial. Id. at 603.
{¶89} “It is well established that a plea agreement is viewed as a contract between the State and a criminal defendant. Santobello v. New York (1971), 404 U.S. 257, ***. Accordingly, if one side breaches the agreement, the other side is entitled to either rescission or specific performance of the plea agreement. Id., at 262.” State v. Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, at ¶13. (Parallel citations omitted.)
{¶90} Clearly, Mr. Grate‘s plea agreement contained further terms, beyond his agreement to plead guilty to certain charges, followed by sentencing by the trial court. The state implied those terms into the agreement as a matter of law, pursuant to former
{¶91} Thus, I believe that Mr. Grate‘s plea agreement with the state remained an executory contract at the time of his reclassification under S.B. 10, meeting the first requirement for determining if a law breaches the ban on impairment of contracts. Trumbull Cty. Bd. of Commrs., supra, at 602.
{¶92} It appears that the second part of the test -- whether a change in the law has impaired the contract established between Mr. Grate and the state, Trumbull Cty.
{¶93} Consequently, I would find that the application of S.B. 10 to Mr. Grate violates the prohibition in
{¶94} I also believe that application of AWA to Mr. Grate constitutes double jeopardy. The Supreme Court of Ohio has held:
{¶95} “The Fifth Amendment to the United States Constitution provides that ‘no person shall (***) be subject for the same offence to be twice put in jeopardy of life or limb.’ Similarly,
{¶96} Here, in 2003, Mr. Grate was convicted of three counts of gross sexual imposition. He was sentenced for these offenses and adjudicated a sexually oriented
{¶97} For all the reasons foregoing, I respectfully concur in part and dissent in part.