State v. HitchcockState v. Hitchcock
Civil Appeal from the Lake County Court of Common Pleas, Case No. 07 MS 000017.
Judgment: Reversed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent-Appellee).
Paul R. Hitchcock, pro se, 1025 Ivanhoe Road, Apt. 2, Cleveland, OH 44110 (Petitioner-Appellant).
DIANE V. GRENDELL, J.
{¶1} Appellant, Paul R. Hitchcock, appeals the judgment of the Lake County Court of Common Pleas, denying his Petition to Contest Reclassification and classifying him a Tier II sex offender. The fundamental principles of the “separation of powers” doctrine as written by our forefathers in our United States Constitution is inviolate, and, therefore, mandates reversal of the decision of the court below. However, Hitchcock
{¶2} On July 24, 2000, Hitchcock pleaded guilty to one count of Attempted Gross Sexual Imposition, a felony of the fourth degree, in violation of
{¶3} Hitchcock was reclassified as a Tier II offender pursuant to the new version of
{¶4} A hearing was held February 14, 2008. The court held that Hitchcock was unable to prove, by clear and convincing evidence, that his new registration requirements did not apply in the manner specified by the Attorney General. Hence, the court determined that Hitchcock was properly reclassified as a Tier II Offender.
{¶5} Hitchcock timely appeals and raises the following assignment of error:
{¶6} “[1.] The retroactive application of Senate Bill 10 violates the Ex Post Facto, Due Process, and Double Jeopardy Clauses of the United States Constitution and the Retroactivity Clause of Section 28, Article II of the Ohio Constitution; Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; Section 10, Article I, of the United States Constitution; and Sections 10 and 28, Articles I and II, respectively, of the Ohio Constitution.”
{¶7} Senate Bill 10, also known as the Adam Walsh Child Protection and Safety Act (AWA), passed in June 2007, with an effective date of January 1, 2008, amended the sexual offender classification system found in
{¶8} Under the new classification system, adopted by the AWA, the trial court must designate the offender as either a Tier I, II, or III sex offender.
{¶9} Enactments of the Ohio General 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
{¶10} Hitchcock first claims that applying the AWA to crimes that occurred before January 1, 2008, violates the ex post facto clause of the United States Constitution.
{¶11} To determine the nature of a particular statute, it is necessary to consider both the [L]egislature’s intent in enacting the statute and the effect of the statute in practice. This analysis is known as the “‘intent-effects’ test.” Id. Since the ex post facto clause only prohibits criminal statutes and punitive schemes, the court must first ask “whether the Legislature intended for the statute to be civil and non-punitive or criminal and punitive.” In re G.E.S., 9th Dist. No. 24079, 2008-Ohio-4076, at ¶18 (citations omitted). If “the [L]egislature 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 [L]egislature’s intent.” Id., quoting United States v. Ward (1980), 448 U.S. 242, 248-249. To survive an ex post facto challenge, 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. See Smith v. Doe (2003), 538 U.S. 84, 92.
{¶12} When applying the intent-effects test to the former
{¶13} Hitchcock argues two points that he believes indicate that, despite the similarities between the prior version of
{¶14} Although Hitchcock is correct that under the new system the offense type determines what tier an offender is placed in, the old version of
{¶15} Hitchcock next argues that the General Assembly placed the AWA within Title 29, Ohio’s Criminal Code, and this shows intent for it to be criminal. This argument is not persuasive. The prior version of
{¶16} Based on the above discussion, the General Assembly did not intend for the statute to be punitive. We must now decide whether the AWA has such a punitive effect as to negate the Legislature’s intent. While there is no test to determine whether a statute is so punitive as to violate the constitutional prohibition against ex post facto laws, the United States Supreme Court has provided certain guideposts to be applied in resolving this issue. The 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
{¶17} When addressing the guideposts, this court has held that “analysis supports the conclusion that any punitive effect of the provisions is insufficient to negate the remedial purpose.” Naples v. State, 11th Dist. No. 2008-T-0092, 2009-Ohio-3938, at ¶38.
{¶18} Finally, we note that the other appellate districts that have considered this issue have concluded that the registration and notification requirements of the AWA 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. Thus, this argument is without merit.
{¶19} Next, Hitchcock argues that the retroactive application of the AWA violates
{¶20} Hitchcock specifically argues that the AWA eliminates his preexisting right to reside where he wishes and the law imposes “new obligations and burdens which did not exist at the time that [he] committed the alleged offense.”
{¶21} The Supreme Court in Cook explained that
{¶22} With respect to the residency restrictions, codified at
{¶23} A statutory provision can be employed retroactively under limited circumstances. In State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, the Ohio Supreme Court fashioned a two part test to determine whether statutes may be applied retroactively. “First, the reviewing court must determine as a threshold matter whether the statute is expressly made retroactive.” Id. at ¶10 (citations omitted). Next “[i]f a statute is clearly retroactive *** the reviewing court must then determine whether it is substantive or remedial in nature.” Id. (citation omitted). A purely remedial statute does not violate
{¶24} Pursuant to the AWA version of
{¶25} We must now determine whether the provisions should be characterized as substantive or remedial. A statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligation, or liabilities to a past transaction, or creates a new right. Van Fossen, 36 Ohio St.3d at 106-107. Whereas, remedial laws are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right. Id. at 107.
{¶26} There are differences between the 1997 version of
{¶27} However, with respect to the increased registration and notification requirements, the Ohio Supreme Court has rejected these arguments on the grounds that the more burdensome registration requirements and more extensive community notification provisions did not alter the essentially regulatory purpose of the act. Ferguson, 2008-Ohio-4824, at ¶39 (“Ohio retroactivity analysis does not prohibit all increased burdens; it prohibits only increased punishment”).
{¶28} The Cook Court concluded that the registration and verification provisions of the 1997 version of
{¶29} Next, Hitchcock argues that the registration period is excessive and violates the prohibition against cruel and unusual punishment. The State contends that Hitchcock waives this argument because he failed to raise this constitutional challenge in the trial court. See State v. Awan (1986), 22 Ohio St.3d. 120, at syllabus.
{¶30} However, even if this argument was not waived, the AWA does not violate the prohibition against cruel and unusual punishment. See Naples, 2009-Ohio-3938, at ¶33, (“the fact that this is a longer period of time than was under the [pre-AWA] version does not impact the analysis. As long as
{¶31} Hitchcock next argues that he could not be sentenced under the AWA because it was not effective at the time of his sentencing. He claims that portions of the AWA became effective July 1, 2007, while other portions did not become effective until January 1, 2008. He contends that
{¶32} However, as the State maintains, “[t]his is a very specific argument that applies to a narrow group of sexual offenders. This argument does not apply to Mr. Hitchcock because he was sentenced in 2000, well before [the AWA] was even contemplated.” We agree; this argument is not applicable to Hitchcock. Accordingly, this argument is without merit.
{¶33} Hitchcock next maintains that the AWA categorically bars him from residing within 1000 feet of a school, preschool or child day-care center, violating his substantive due process rights.
{¶34} The State counters that Hitchcock 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.
{¶35} “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.
{¶36} In the present case, Hitchcock has not alleged or otherwise argued that the residency restrictions of
{¶37} Accordingly, Hitchcock is without standing to challenge the AWA’s residency restrictions. State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059, at ¶111; State v. Gilfillan, 10th Dist. No. 08AP-317, 2009-Ohio-1104, at ¶117 (citations omitted).
{¶38} Hitchcock argues that the AWA violates the Double Jeopardy Clause of the United States Constitution and
{¶39} “[T]he United States Supreme Court has also applied the clause to prevent a state from punishing twice, or from attempting a second time to criminally punish for the same offense.” Byers, 2008-Ohio-5051, at ¶100 (citations omitted). “Thus, the threshold question in a double jeopardy analysis is whether the government’s
{¶40} In Williams, the Ohio Supreme Court found no merit with the argument that former
{¶41} Since we find that the AWA,
{¶42} Hitchcock further maintains that “Senate Bill 10 violates the separation-of-powers principle that is inherent in Ohio’s constitutional framework by unconstitutionally limiting the power of the judicial branch of government.” He contends that Senate Bill 10 divests the judiciary branch of its power to sentence a defendant.
{¶43} “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
{¶44} The reclassification of offenders pursuant to
{¶45} Unlike the review vested in courts of appeal, “the classification of sex offenders into categories has always been a legislative mandate, not an inherent power of the courts.” State v. Smith, 2008-Ohio-3234, at ¶39 (citation omitted). Similarly, this court has observed “[t]he enactment of laws establishing registration requirements for, e.g., motorists, corporations, or sex offenders, is traditionally the province of the legislature and such laws do not require judicial involvement.” Swank, 2008-Ohio-6059, at ¶99.
{¶46} However, “[t]he 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. “[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; 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). “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.”
{¶47} A determination of an offender’s classification under former
{¶48} Hitchcock’s classification as a sexually oriented offender, with definite registration requirements, constituted a final order of the lower court. Therefore, no court can now be statutorily directed or required to modify the prior judgment provisions concerning Hitchcock’s notification and registration requirements without violating separation of powers and res judicata principles.
{¶49} Other appellate districts have held that the amendments to the Act do not vacate “final judicial decisions without amending the underlying applicable law” or “order the courts to reopen a final judgment.” State v. Linville, 4th Dist. No. 08CA3051, 2009-Ohio-313, at ¶23, citing Slagle, 2008-Ohio-593, at ¶21. According to these cases and the arguments of the State, “the Assembly has enacted a new law, which changes the different sexual offender classifications and time spans for registration: (sic) 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.” State v. Slagle, 145 Ohio Misc.2d 98, 2008-Ohio-593, at ¶21. We disagree. The imposition of the new enhanced notification and registration requirements of the Act to previously adjudicated offenders changes the terms of prior final sentencing judgments.
{¶50} It does not matter that the current Sex Offender Act formally amends the underlying law and 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. Hitchcock’s reclassification, as a practical matter, nullifies that part of the court’s August 30, 2000 Judgment determining Hitchcock to be a sexually oriented offender and ordering him to register for a period of
{¶51} It is also argued that the Ohio Supreme Court has characterized the registration and notification requirements of the Sex Offender Act as “a collateral consequence of the offender’s criminal acts,” in which the offender does not possess a reasonable expectation of finality. Ferguson, 2008-Ohio-4824, at ¶34 (citations omitted); Linville, 2009-Ohio-313, at ¶24 (citation omitted).
{¶52} This argument also is unavailing. In Ferguson, as in Cook, the Supreme Court did not consider the argument that the enactment of House Bill 180/Megan’s Law overturned a valid, final judgment. Rather, the Court was asked to determine whether the retroactive application of the Sex Offender Act violated the ex post facto clause or the prohibition against retroactive legislation. The court did not consider the arguments based on separation of powers and res judicata raised herein. In Cook, the Sex Offender Act was applied retroactively to persons who had not been previously classified as sexual offenders. There were no prior final judicial determinations regarding the offenders’ status as sexual offenders. Thus, the Supreme Court could properly state that the new burdens imposed by the law did not “impinge on any reasonable expectation of finality” the offenders had with respect to their convictions. 83 Ohio St.3d at 414. In the present case, Hitchcock had every reasonable expectation of finality in the trial court’s prior Judgment Entry.
{¶53} Reliance upon the Supreme Court’s reasoning in Cook and Ferguson is further misplaced since the separation of powers and res judicata doctrines apply equally in civil (remedial) contexts as they do in criminal (punitive) contexts. Akron v. Smith, 9th Dist. Nos. 16436 and 16438, 1994 Ohio App. LEXIS 1859, at *4 (“[t]he doctrine of res judicata *** applies equally to criminal and to civil litigation”) (citation omitted).
{¶54} 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. Am.Sub.S.B. No. 10, Section 5. Hitchcock’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, 514 U.S. at 228 (emphasis sic). To the extent the Adam Walsh Act attempts to modify existing final sentencing judgments, such as Hitchcock’s sentence, it violates the doctrines of separation of powers and finality of judicial judgments, despite the good intentions of the Legislature. As such, that portion of the Act is invalid, unconstitutional, and unenforceable.
{¶56} Hitchcock’s sole assignment of error is with merit to the extent indicated above.
{¶57} For the foregoing reasons, the Judgment Entry of the Lake County Court of Common Pleas, denying his Petition to Contest Reclassification and classifying him a Tier II sex offender, is reversed; however, Hitchcock shall continue registering as a sexually oriented offender pursuant to the trial court’s August 30, 2000 Judgment Entry. Costs to be taxed against appellee.
TIMOTHY P. CANNON, J., concurs in judgment only with a 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.
{¶58} I concur with the majority’s disposition of Hitchcock’s claim regarding cruel and unusual punishment, as well as his challenge to the residency restriction.
{¶59} I would follow this court’s opinion in State v. Ettenger, 11th Dist. No. 2008-L-054, 2009-Ohio-3525. I do not believe that the application of the Adam Walsh Act to Hitchcock violates the doctrine of separation of powers. See State v. Ettenger, 2009-Ohio-3525, at ¶75-79.
{¶60} Instead, I would hold that the application of the Adam Walsh Act to Hitchcock 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.
{¶61} Hitchcock had an expectation of finality that his prior adjudication as a sexually oriented offender would result in a finite, ten-year reporting period. However, Hitchcock has been reclassified as a Tier II offender subject to enhanced reporting requirements for 25 years.
{¶62} 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.
{¶63} I concur with the majority’s disposition of Mr. Hitchcock’s third issue – that application of AWA to him violates the doctrine of separation of powers, thus requiring us to reverse and remand. I further concur with the majority’s disposition of his fifth issue, relating to the effective dates of AWA. I agree with the majority that there is no merit in his argument that application of AWA to him constitutes cruel and unusual punishment, though on a different analysis. And I would hold that, on the facts of this case, Mr. Hitchcock’s challenge to the residency restrictions of AWA is not ripe for review. However, I do find that application of AWA to Mr. Hitchcock violates the federal ban against ex post facto laws, as well as the Ohio ban on retroactive laws. I also believe its application to him constitutes double jeopardy. Consequently, I would reverse and remand on these issues, as well.
{¶65} “’ “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.)
{¶66} 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.
{¶67} 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.
{¶68} First, there is the simple fact that AWA is part of Title 29 of the Revised Code. The United States Supreme Court rejected the notion that a statute‘s placement
{¶69} Second, those portions of AWA controlling the sentencing of sex offenders indicate that the classification is part of the sentence imposed – and thus, part of the offender‘s punishment. See, e.g.,
{¶70} Both the placement of AWA within the Revised Code, and the language of the statute, indicates a punitive, rather than remedial, purpose.2 Further, as Judge James J. Sweeney of the Eighth Appellate District recently noted regarding the intent of AWA:
{¶71} “*** the General Assembly expressed a remedial intent in the legislation. However, the stated purpose of protecting the public from those likely to reoffend is substantially undermined by the total removal of any discretion or consideration in
{¶72} For all these reasons, I would find that the intent of AWA is punitive, rather than remedial.
{¶73} Moreover, an exploration of the effects of AWA, under the seven factors of the Kennedy test, reveals that it is a punitive, criminal statute, rather than remedial and civil. 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.
{¶74} 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 render compliance impossible. What, for instance, is included amongst automobiles “regularly available” to an offender, or telephones “used” by an offender? Is an offender required to report to the sheriff when he or she has a loaner from the auto body shop? Is an offender required to report if he or she stopped in a mall and used a public phone?
{¶75} 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.)
{¶76} 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.
{¶77} Thus, AWA imposes significant disabilities and restraints upon offenders, which indicates it is an unconstitutional ex post facto law under the first Kennedy factor.
{¶78} 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.
{¶79} 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 not. There are strict liability sex offenses, such as statutory rape. Nevertheless, as the Supreme Court of Alaska remarked in considering this factor in a challenge to Alaska‘s version of Megan‘s Law, the vast majority of sex offenses do require a finding of scienter. Doe v. Alaska (2008), 189 P.3d 999, 1012-1013. I
{¶80} 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.
{¶81} 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.
{¶82} 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 themselves and their families.
{¶83} Thus, AWA‘s requirements fulfill the traditionally punitive roles of
{¶84} 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:
{¶85} “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.” Id. at 1015. (Footnote omitted.)
{¶86} 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.
{¶87} 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 whether the law in question is excessive in relation to that alternate purpose. AWA is
{¶88} 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. Hitchcock.
{¶89} I further believe that AWA violates the Ohio Constitution‘s ban on retroactive laws.
{¶90} “‘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.)
{¶91} 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
{¶92} The foregoing establishes that AWA is an unconstitutional retroactive law, as applied to Mr. Hitchcock. 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.
{¶93} However, an analysis under
{¶94} 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.
{¶95} “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.) Ohio courts have noted that, in the main, the contract is completely executed once the defendant has pleaded guilty, and the trial court has sentenced him or her. See, e.g., State v. McMinn (June 16, 1999), 9th Dist. No. 2927-M, 1999 Ohio App. LEXIS 2745, at 11; accord, State v. Pointer, 8th Dist. No. 85195, 2005-Ohio-3587, at ¶9. However, to the extent the plea agreement contains further promises, the contract remains executory, and may be enforced by either party. See, e.g., Parsons v. Wilkinson (S.D. Ohio 2006), Case No. C2-05-527, 2006 U.S. Dist. LEXIS 54979 (allegation by inmate that plea agreement superseded parole board‘s authority regarding timing of parole hearing sufficient to withstand state attorney general‘s motion to dismiss in
{¶96} Clearly, Mr. Hitchcock‘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
{¶97} Thus, I believe that Mr. Hitchcock‘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.
{¶99} Consequently, I would find that the application of S.B. 10 to Mr. Hitchcock violates the prohibition in
{¶100} I also believe that application of AWA to Mr. Hitchcock constitutes double jeopardy. The Supreme Court of Ohio has held:
{¶101} “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,
{¶102} Here, in 2000, Mr. Hitchcock pleaded guilty to one count of attempted gross sexual imposition. He was sentenced for this offense and adjudicated a sexually oriented offender. Additional punitive measures have now been placed on him, as he is required to comply with the new, more stringent registration requirements. Essentially, he is being punished a second time for the same offense. The application of the current version of
{¶103} As I would find that AWA is a criminal, punitive statutory scheme, I feel obliged to analyze Mr. Hitchcock‘s contention that application of it to him is cruel and unusual punishment, banned under the
{¶104} “Historically, the Eighth Amendment has been invoked in extremely rare cases, where it has been necessary to protect individuals from inhumane punishment such as torture or other barbarous acts. Robinson v. California (1962), 370 U.S. 660, 676, ***. Over the years, it has also been used to prohibit punishments that were found to be disproportionate to the crimes committed. In McDougle v. Maxwell (1964), 1 Ohio St.2d 68, ***, this court stressed that Eighth Amendment violations are rare. We stated that ‘cases in which cruel and unusual punishments have been found are limited to those involving sanctions which under the circumstances would be considered shocking
{¶105} “The United States Supreme Court has also discussed the concept of whether the Eighth Amendment requires that sentences be proportionate to the offenses committed. An Eighth Amendment challenge on these grounds was initially applied only in cases involving the death penalty or unusual forms of imprisonment. Enmund v. Florida (1982), 458 U.S. 782, ***; Weems v. United States (1910), 217 U.S. 349, ***. Then, in Solem v. Helm (1983), 463 U.S. 277, 290, ***, the court applied the Eighth Amendment to reverse a felony sentence on proportionality grounds, finding that ‘a criminal sentence must be proportionate to the crime for which the defendant has been convicted.’ In so holding, the Solem court set forth the following tripartite test to review sentences under the Eighth Amendment:
{¶106} “‘First, we look to the gravity of the offense and the harshness of the penalty. (***) Second, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive. (***) Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.’ Id. at 290-291, ***.
{¶107} “More recently, in Harmelin v. Michigan (1991), 501 U.S. 957, ***, the United States Supreme Court revisited the issue of proportionality as it relates to the Eighth Amendment. In Harmelin, the court was asked to decide whether a mandatory
{¶108} Application of the Solem test to Mr. Hitchcock‘s predicament makes clear that AWA does not constitute “cruel and unusual” punishment in violation of the Eighth Amendment. Upon a Tier II offender, AWA places time-consuming and difficult reporting burdens, for an extraordinarily long time. It is like spending twenty-five years on probation. But if the penalty in Harmelin, supra – life imprisonment, without parole, for cocaine possession – passes Eighth Amendment scrutiny, the penalties inflicted by AWA upon a Tier II offender must, as well. Consequently, pursuant to Solem and Harmelin, I cannot find that there is a gross disproportion between the crime and the penalty. And, since Mr. Hitchcock cannot pass the first prong of the Solem test, analysis of the second and third prongs is not required. Weitbrecht, supra, at 373, fn. 4.
{¶109} For all the reasons foregoing, I respectfully concur in part and dissent in part.