THE STATE OF OHIO, APPELLANT, v. HOWARD, APPELLEE.
No. 2011-2126
Supreme Court of Ohio
Submitted August 22, 2012—Decided December 6, 2012
134 Ohio St.3d 467, 2012-Ohio-5738
Judgment reversed and cause remanded.
PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Daniel G. Padden, Guernsey County Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kristopher A. Haines and Craig M. Jacquith, Assistant Public Defenders, for appellant.
Paul A. Dobson, Wood County Prosecuting Attorney, and David E. Romaker Jr., Assistant Prosecuting Attorney, urging affirmance on behalf of amicus curiae Ohio Prosecuting Attorneys Association.
Davis Polk & Wardwell, L.L.P., and Sharon Katz, urging reversal on behalf of amicus curiae the Innocence Network.
PFEIFER, J.
Factual and Procedural Background
{¶ 2} The factual background in this case is as much about the changing landscape of sex-offender-registration law in Ohio as it is about defendant-appellee Donny Howard. There is no disрute regarding the operative facts. In September 2000, Howard was convicted of rape, a first-degree felony, and sentenced to four years in prison. At that time, Howard was designated a habitual sex offender pursuant to Ohio‘s Megan‘s Law, which had been adopted in 1996 and became effective on January 1, 1997. Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2601. Pursuant to that designation, Howard was required to verify his address on an annual basis and to notify the sheriff of any change of address. Former
{¶ 3} Effective July 31, 2003, the General Assembly passed amendments to Megan‘s Law in Am.Sub.S.B. No. 5 (“S.B. 5“), 150 Ohio Laws, Part IV, 6558, 6687-6702. One change in the law was an increase in the punishment for failure to comply with former
{¶ 4} In 2007, the General Assembly passed Am.Sub.S.B. No. 10, Ohio‘s version of the federal Adam Walsh Act (“AWA“), which repealed Megan‘s Law effective January 1, 2008. Pursuant to the AWA, Howard was reclassified by the Ohio Attorney General as a Tier III sex offender, subjecting Howard to Tier III notification provisions for life. Am.Sub.S.B. No. 97 also became effective on January 1, 2008; it amended
{¶ 5} On June 3, 2010, Howard was indicted for a first-degree felony for failing to notify the sheriff of a change of address 20 days prior to the change. Howard pled no contest to the charge; on October 28, 2010, the trial court sentenced Howard to the mandatory minimum prison term of three years.
{¶ 6} Also on June 3, 2010—the day of Howard‘s indictment—this court declared unconstitutional the reclassification provisions of the AWA in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. Pursuant to Bodyke, the classifications and community-notification and registration orders imposed by judges before the AWA were reinstated. Bodyke at ¶ 66. Thus, for Howard, his original classification as a habitual sex offender and the registration and notification requiremеnts for that classification were reinstated.
{¶ 7} On June 13, 2011, Howard filed a delayed appeal with the Second District Court of Appeals, claiming that the trial court had erred in convicting him of a first-degree felony; Howard based his appeal on State v. Milby, 2d Dist. No. 23798, 2010-Ohio-6344, 2010 WL 5480656. In Milby, the defendant had been convicted of a rape in 1983 and was classified as a sex offender. In 2003, while incarcerated, he was reclassified as a sexual рredator. He was apparently reclassified under the AWA as a Tier III sex offender. He violated his reporting requirements in 2009.
{¶ 8} In a decision subsequent to Bodyke, the Milby court struck down the Tier III reclassification and reinstated the previous sexual-predator classification and the attendant reporting order. The court further held that the increased penalty imposed by the AWA could not be applied to the defendant. The cause was rеmanded for resentencing as a third-degree instead of a first-degree felony.
{¶ 9} In the instant case, the court below applied Milby:
As in Milby, when Howard‘s original classification and registration requirements are applied, his conviction for failure to notify is not offended. There is no dispute that under former law, Howard was required to provide written notice of a change of address at least 20 days prior to changing his address of residence. See former
R.C. 2950.05(A) . However, the amendment ofR.C. 2950.99 changеd the penalty for failure to notify from a felony of the fifth degree to a felony of the first degree, based upon the penalty for the underlying offense of rape, and Howard was subject to a mandatory term of incarceration. As in Milby, the fact that Howard had committed his offense of failure to notify after the effective date of S.B. 97 does not affect the outcome herein as the state assеrts. Pursuant to Milby, we find that the trial court erred when it convicted Howard of a first-degree felony and sentenced him accordingly, instead of finding him guilty of a fifth-degree felony.
State v. Howard, 195 Ohio App.3d 802, 2011-Ohio-5693, 961 N.E.2d 1196, ¶ 12. The court reversed Howard‘s sentence and remanded the matter to the trial court for resentencing.
{¶ 10} The appellate court applied the penalty that existed on the date of the defendant‘s original classificаtion under Megan‘s Law in September 2000. The dissenter in Howard argued that the applicable penalty was the Megan‘s Law penalty provision in place immediately before the AWA repealed Megan‘s Law, i.e., the third-degree-felony provision first instituted in 2003 via S.B. 5:
Based on Milby, as followed in [State v.] Johnson [2d Dist. No. 24029, 2011-Ohio-2069, 2011 WL 1661497] and [State v.] Alexander, [2d Dist. No. 24119, 2011-Ohio-4015, 2011 WL 3557880], this court has held that when a failure-to-notify case is reversed after an improper AWA reclassification, the penalty for violation of failure tо notify [sic] reverts to that penalty that was in effect before the “offending” AWA legislation, which was effective January 1, 2008. Prior to enactment of AWA, the penalty for failure to notify for underlying [first-degree felonies through third-degree felonies] was a felony of the third degree. Consequently, I would remand this case for resentencing of the defendant for a conviction of [a third-degree felony].
Howard at ¶ 21 (Hall, J., concurring in part and dissenting in part).
{¶ 11} The state appeаled, raising the following proposition of law: “The felony sentencing statute
{¶ 12} The cause is before this court upon the acceptance of a discretionary appeal. State v. Howard, 131 Ohio St.3d 1472, 2012-Ohio-896, 962 N.E.2d 803.
Law and Analysis
{¶ 13} This is an appeal brought by the statе. The only issue we address is which penalty provision—that of Megan‘s Law or the AWA—applies to sex offenders originally classified under Megan‘s Law who commit violations of notice-of-address-change requirements after the effective date of the AWA. The defendant has not raised the issue whether he was properly indicted in this case, that is, whether he can be convicted of a failure to provide nоtice of a change of address under Megan‘s Law when he was indicted for a notice violation under the AWA. We address that issue in another case announced today, State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316.
The Effect of Bodyke, Gingell, and Williams
{¶ 14} In Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, this court held that the reclassification provisions in the AWA,
{¶ 15} In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 N.E.2d 192, the defendant—who was originally classified as a sexually oriented offender under Megan‘s Law—was charged with an
{¶ 16} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, this court addressed the case of a defendant who had committed a sex offense before, but was sentenced after, the AWA became effective. The trial court designated Williams a Tier II sex offender, and he was automatically subjected to the concomitant registration and notification provisions of the AWA. This court declared that the AWA was punitive and was unconstitutional as applied to Williams: “2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.” Id. at syllabus. This court remanded the case “for resentencing under the law in effect at the time Williams committed the offense.” Id. at ¶ 23. Thus, this court ordered that the provisions of Megan‘s Law would apply to defendants who committed their offenses before the enactment date of the AWA. In another case decided today, In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983 N.E.2d 350, this court clarified that only persons who commit their underlying crime on or after the effective date of the AWA—Jаnuary 1, 2008—are subject to the requirements of the AWA.
{¶ 17} Therefore, Ohio has, in effect, separate statutory schemes governing sex offenders depending on when they committed their underlying offense. Those who committed their offense before the effective date of the AWA are subject to the provisions of Megan‘s Law; those who committed their offense after the effective date of the AWA are subject to the AWA.
Applicability of R.C. 2950.99 to Violations of Former R.C. 2950.05
{¶ 18} The current version of
{¶ 19} However, in this case we deal with a defendant who violated former
Effect of Changes to R.C. 2950.99 While Megan‘s Law Was in Effect
{¶ 20} As noted above,
{¶ 21} We hold that the appropriate version of former
{¶ 22} Howard argues that the imposition of any penalty other than the one in effect when Howard‘s duties under
{¶ 23} In State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), this court unanimously upheld the constitutionality of Megan‘s Law against challenges under the Retroactivity Clause and the Ex Post Facto Clause. In determining whether Megan‘s Law violated the Ex Post Facto Clause, this court employed guideposts developed by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The guideposts are designed to aid courts in determining whether a statute is so punitive as to violate the constitutional prohibition against ex post facto laws. One guidepost asks “whether the behavior to which [the statute] applies is already a crime.” Cook at 418, quoting Mendoza-Martinez at 168. In addressing that factor, the Cook court wrote,
Even prior to the promulgation of the current version of
R.C. Chapter 2950 , failure to register was a punishable offense. See formerR.C. 2950.99 , 130 Ohio Laws 671. Thus, any such punishment flows from a failure to register, a new violation of the statute, not from a past sex offense. In other words, the рunishment is not applied retroactively for an act that was committed previously, but for a violation of law committed subsequent to the enactment of the law.
{¶ 24} For offenders classified under Megan‘s Law, the sentence changes imposed by S.B. 5 did not apply to the offender‘s original sex offense, but instead applied to a prospective failure to meet the registration requirements of
{¶ 25} In State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, this court considered the constitutionality of
Adkins is not being punished for a previous juvenile adjudication; he is being punished for his current offense. As the United States Supreme Court has held, “When a defendant is given a higher sentence under a recidivism statute—or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant‘s criminal history—100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant‘s ‘status as a recidivist.’ The sentence ‘is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.’ Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948).” United States v. Rodriquez (2008), 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed.2d 719.
{¶ 26} When S.B. 5 increased the punishment for a violation of
“Critical to relief under the Ex Post Facto Clause is not an individual‘s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham (1981), 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17.
Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, ¶ 18.
{¶ 27} As this court pointed out in Adkins, “The increase in punishment provided for in
{¶ 28} We find that the penalty еnhancements of S.B. 5 do not relate back to the original sex offense, but instead relate to a defendant‘s failure to meet the requirements of
Conclusion
{¶ 29} We hold that for a defendant whose sex-offender classification was determined under Megan‘s Law, the penalty for a violation of the reporting requirements of former
{¶ 30} We agree with the judgment of the court of appeals that current
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and LUNDBERG STRATTON and MCGEE BROWN, JJ., conсur.
O‘DONNELL and CUPP, JJ., dissent.
LANZINGER, J., dissents and would remand for resentencing as a fifth-degree felony.
CUPP, J., dissenting.
{¶ 31} Because I believe that the majority opinion‘s reasoning is fundamentally flawed and undermines well-settled precedent in a way that will lead to substantial negative consequences in areas of the criminal law beyond those involving sex offenders, I respectfully dissent.
{¶ 32} I would adopt the state‘s proposition of law, which asserts that current
{¶ 33} I agree with the well-reasoned partial dissent of Judge Stewart in State v. Page, 8th Dist. No. 94369, 2011-Ohio-83, 2011 WL 208290:
The enhanced penalty provision [of S.B. 97] is not couched in terms of the new classifications. It refers only to “violations” of the repоrting statutes, not to the type of tier offender involved. Moreover, there is no question that the General Assembly could validly pass a law that prospec-
tively enhances a penalty for repeat offenders. As the First District Court of Appeals noted when addressing a similar issue regarding a sentencing enhancement, “[the statute] is not violative of the constitutional prohibition against ex post facto laws because it is not ‘retrospective,’ i.e., it does not ‘change * * * the legal consequences of acts completed before its effective date,’ but simply mandates an enhanced penalty for acts committed after the effective date of the provision if the defendant has previously been convicted[.]” State v. Clark (Aug. 5, 1992), 1st Dist. No. C-910541 [1992 WL 188535].
Id. at ¶ 16 (Stewart, J., concurring in part and dissenting in part).
{¶ 34} I also agree with the reasoning of State v. Freeman, 1st Dist. No. C-100389, 2011-Ohio-4357, 2011 WL 3847251:
The penalty provisions contained in current
R.C. 2950.99 became effective January 1, 2008. Freeman pleaded guilty to failing to nоtify the sheriff of an address change on or about October 15, 2009. Although Freeman‘s duty to register stemmed from his sex offense, his failure to notify the sheriff of an address change was a new offense that he had committed after the effective date of currentR.C. 2950.99 ‘s penalty provisions. Therefore, currentR.C. 2950.99 was not applied retroactively to Freeman‘s conduct.
(Footnote omitted.) Id. at ¶ 18.
{¶ 35} In State v. Cook, 83 Ohio St.3d 404, 421, 700 N.E.2d 570 (1998), we recognized that despite statutory changes, the type of punishment at issue in this case “flows from a failure to register, a new violation of the statute, not from a past sex offense,” sо “the punishment is not applied retroactively for an act that was committed previously, but for a violation of law committed subsequent to the enactment of the law.” (Emphasis added.) See also State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, ¶ 18 (there is no ex post facto violation when an increase in punishment is established before an offense is committed).
{¶ 36} The majority cites Cook and Adkins in its partial application of those precedents, but fails to appreсiate that the principles stated in those decisions definitively require the penalties of current
{¶ 37} The majority states, “When [Am.Sub.S.B. No.] 5 increased the punishment for a violation of
{¶ 38} The majority‘s statements regarding S.B. 5 also apply with equal force to the changes to
{¶ 39} I would fully reverse the judgment of the court of appeals and would hold that current
O‘DONNELL, J., concurs in the foregoing opinion.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Johnna M. Shia, Assistant Prosecuting Attorney, for appellant.
Marshall G. Lachman, for appellee.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Cuyahoga County Prosecutor‘s Office.