STATE OF OHIO, Appellee, - vs - MIQUAN D. HUBBARD, Appellant.
CASE NO. CA2019-05-086
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/9/2020
2020-Ohio-856
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-09-1562
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Michele Temmel, 6 South Second Street, #305, Hamilton, Ohio 45011, for
HENDRICKSON, P.J.
{¶ 1} Appellant, Miquan D. Hubbard, appeals from his conviction in the Butler
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 10, 2018, appellant was indicted on one count of murder in violation of
{¶ 3} Appellant initially pled not guilty to the charged offenses. However, On March 7, 2019, following plea negotiations, appellant pled guilty to murder in violation of
{¶ 4} Following a
{¶ 5} The trial court informed appellant that since he pled guilty to murder, a presumption existed that he would be required to enroll in the violent offender database. The court explained appellant could file a motion to rebut that presumption and the burden would be on appellant to prove by a preponderance of the evidence that he was not the principal offender in the commission of the murder. Appellant elected not to challenge the presumption of enrollment into the violent offender database, but he objected to application of Sierah‘s Law on the basis that S.B. 231 was “punitive and not remedial; and therefore, * * * unconstitutional to retroactively apply [it].” The trial court overruled appellant‘s objection, noting that although the commission of the offense and appellant‘s plea took place prior to the effective date of S.B. 231, the language of
{¶ 6} The trial court proceeded to sentence appellant to 15 years to life in prison for murder and to a mandatory one-year sentence on the firearm specification, to be served consecutively for a total prison term of 16 years to life in prison. The trial court informed appellant of his duties to register as a violent offender under S.B. 231 and had him sign a Notice of Duties to Register as a Violent Offender (
{¶ 7} Appellant now appeals from his sentence, raising two assignments of error.1 As they are related, we will address his assignments of error together.
II. ANALYSIS
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT IMPROPERLY PRESUMED THAT
{¶ 10} Assignment of Error No. 2:
{¶ 11} MR. HUBBARD‘S SENTENCE WAS CONTRARY TO LAW.
{¶ 12} In his first assignment of error, appellant argues the violent offender registration scheme set forth in
A. Statutory Provisions Creating a Violent Offender Database
{¶ 13} S.B. 231 “provides for the establishment and operation by the Bureau of Criminal Identification and Investigation (BCII) of a Violent Offender Database (VOD), [and] requires persons convicted of specified violent offenses in Ohio (violent offenders) or those convicted of a comparable offense in another state (out-of-state violent offenders) who become aware of the Database to enroll in the Database.” Ohio Legislative Service Commission, Bill Analysis of S.B. 231, as introduced in the Senate on November 14, 2017, at 1. The statutory provisions set forth in
{¶ 14}
[a] person who on the effective date of this section has been convicted of or pleaded guilty to an offense listed in division (A)(1) of this section and is confined in a jail, workhouse, state correctional institution, or other institution, serving a prison term, term of imprisonment, or other term of confinement for the offense.
{¶ 15} Pursuant to
{¶ 16} An offender wishing to rebut the presumption of enrollment in the violent offender database must file a motion with the court prior to or at the time of sentencing if the offender was classified as a violent offender under division (A)(1) of
{¶ 17} The burden is on the offender to prove, by a preponderance of the evidence, that the offender was not the principal offender in the commission of the offense that led to the violent offender classification.
{¶ 18} Each violent offender required to enroll in the violent offender database shall be given notice of his or her database duties and informed that those duties last for ten years after initial enrollment.
{¶ 19} Where a violent offender classified under division (A)(1) of
sets forth (1) the offender‘s full name and any alias the offender may have used; (2) the offender‘s address; (3) the offender‘s social security number; (4) the offender‘s driver‘s license number or state identification card number; (5) the offense for which the offender was convicted; (6) the name and address of the offender‘s employer; (7) the name and address of any school or university the violent offender attends; (8) a description of each vehicle the violent offender operates, as well as the vehicle identification number and license plate number for each vehicle operated; and (9) a description of any scars, tattoos, or other distinguishing marks on the offender.
{¶ 20} The violent offender database is maintained by BCII, and is only made available to federal, state, and local law enforcement officers.
{¶ 21} With these statutory provisions in mind, we turn to the Retroactivity Clause of the Ohio Constitution.4
B. Retroactivity Clause of the Ohio Constitution
{¶ 22}
retroactive application violates the Retroactivity Clause involves a two-step analysis. State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, ¶ 27. A court must first determine, as a threshold matter, whether the General Assembly expressly indicated its intent that the statute apply retroactively. Id.; State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 8; State v. Gregoire, 12th Dist. Butler No. CA2019-04-066, 2020-Ohio-415, ¶ 10. If not, the statute may not be applied retroactively. White at ¶ 27, citing
1. Intent of General Assembly to Apply Sierah‘s Law Retroactively
{¶ 23} The presumption that the violent-offender enrollment statutes apply prospectively may be overcome only upon a “clearly expressed legislative intent” that the statutes apply retroactively. State v. Caldwell, 1st Dist. Hamilton No. C-130812, 2014-Ohio-3566, ¶ 16, citing Walls at ¶ 10.
(1) A person who on or after the effective date of this section is convicted of or pleads guilty to any of the following:
(a) A violation of section
2903.01 [aggravated murder],2903.02 [murder],2903.03 [voluntary manslaughter],2905.01 [kidnapping] of the Revised Code or a violation of section2905.02 [abduction] of the Revised Code that is a felony of the second degree;(b) Any attempt to commit, conspiracy to commit, or complicity in committing any offense listed in division (A)(1)(a) of this section.
(2) A person who on the effective date of this section has been convicted of or pleaded guilty to an offense listed in
division (A)(1) of this section and is confined in a jail, workhouse, state correctional institution, or other institution, serving a prison term, term of imprisonment, or other term of confinement for the offense.
(Emphasis added.)
{¶ 24} The enrollment requirements, therefore, expressly apply to any violent offender who “on the effective date * * * has been convicted or pleaded guilty” to a specified violent offense and is confined for that offense.
2. Retroactive Application – Sierah‘s Law is Remedial
{¶ 25} Having determined that the General Assembly intended for Sierah‘s Law to apply retroactively, we next analyze whether the statutes are remedial or substantive in nature. As the Ohio Supreme Court has recognized, “‘retroactivity itself is not always forbidden by law.‘” White, 2012-Ohio-2583 at ¶ 31, quoting Bielat v. Bielat, 87 Ohio St.3d 350, 353 (2000). “[T]here is a crucial distinction between statutes that merely apply retroactively (or ‘retrospectively‘) and those that do so in a manner that offends [the Ohio] Constitution.” Bielat at 353. “A purely remedial statute does not violate
{¶ 26} Not every past occurrence, however, results in a blanket prohibition against future legislation. Caldwell, 2014-Ohio-3566 at ¶ 22. The Ohio Supreme Court has frequently recognized that “a later enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration, if it did not create a vested right, created at least a reasonable expectation of finality.” State ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281 (1988). See also Bielat at 357; Cook at 412. The commission of a felony is not a past transaction that creates a reasonable expectation of finality. White at ¶ 43. Therefore, “[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.” Matz at 281-282.
{¶ 27} The supreme court appeared to depart from the principle that the commission of a felony does not create an expectation of finality in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374. See Caldwell at ¶ 23. In Williams, the supreme court was presented with the question of whether Senate Bill 10‘s sex-offender registration requirements, stemming from Ohio‘s implementation of the federal Adam Walsh Act, were unconstitutionally retroactive. Williams at ¶ 7. Prior supreme court opinions had upheld the retroactive application of earlier versions
{¶ 28} The supreme court‘s decision in Williams “is hard to reconcile with the court‘s previous pronouncements that the commission of a felony does not create a reasonable expectation of finality.” Caldwell at ¶ 24. “Perhaps it is best understood by saying that, in Williams, the court simply found the scheme so punitive that it amounted to a violation of the Ohio Constitution, notwithstanding the court‘s prior jurisprudence on criminal acts and the expectation of finality.” Id.
{¶ 29} Following Williams, the supreme court “returned to analyzing retroactive legislation under the familiar framework of whether the retroactive application of a new law burdened a vested right or a reasonable expectation of finality.” Id. at ¶ 25, citing White, 2012-Ohio-2583. In White, the supreme court was tasked with examining the constitutionality of
{¶ 30} The supreme court disagreed, finding that the retroactive statute was remedial, rather than substantive in nature. Id. at ¶ 48. In so holding, the court first considered whether
be sentenced under Penix. Id. at ¶ 34-35. The court defined an “accrued right” as a “right that is ripe for enforcement” and is not “dependent for its existence upon the action or inaction of another.” Id. at ¶ 35, citing Black‘s Law Dictionary 1436 (9th Ed.2009) and Hatch v. Tipton, 131 Ohio St. 364, 368 (1936), paragraph two of the syllabus. The court concluded that
{¶ 31} Finally, the court considered whether the newly enacted statute imposed a new burden on the defendant. Id. at ¶ 38-44. The court found that
{¶ 32} Applying the analysis utilized in White, we find that Sierah‘s Law is remedial,
rather than substantive, in nature. The violent-offender enrollment statutes do not increase the punishment for the specified violent offenses of aggravated murder, murder, voluntary manslaughter, kidnapping, or abduction as a second-degree felony. Rather, classification as a violent offender and enrollment into the violent offender database “is a collateral consequence of the offender‘s criminal acts rather than a form of punishment per se.” Ferguson, 2008-Ohio-4824 at ¶ 34. See also Caldwell, 2014-Ohio-3566 at ¶ 30-35 (finding that classification as an arson-offender and registration in the arson-offender registry was a collateral consequence of committing an arson offense and that retroactive application of the arson-offender registration scheme did not violate the Retroactivity Clause of the Ohio Constitution). The only additional penalty faced by a violent offender is the penalty triggered by the offender‘s commission of a new crime – the failure to enroll in the database, re-enroll in the database, or notify the sheriff of a change of address. See, e.g., Cook, 83 Ohio St.3d at 421 (noting that any punishment that flows from a defendant‘s failure to register as a sex offender under
{¶ 33} As the supreme court reiterated in White, “‘[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.‘” White, 2012-Ohio-2583 at ¶ 43, quoting Matz, 37 Ohio St.3d at 281-82. At the time he committed murder, appellant could not have had any reasonable expectation of finality with respect to the absence of any postconviction regulation. Retroactive application of the violent-offender enrollment statutes, therefore, does not “create a new burden ‘in the
Id. at ¶ 44, quoting Matz at 281. See also Caldwell at ¶ 32.
{¶ 34} Furthermore, a comparison of the violent-offender enrollment statutes to the sex-offender registration statutes set forth in
{¶ 35} Additionally, sex offenders must register as frequently as 90 days and must register in as many as three different counties – those in which they reside, work, and attend school. See Williams at ¶ 14. Conversely, a violent offender need only register annually in the county in which the offender resides.
that any statements, information, photographs, or fingerprints that an offender is required to provide are public record and much of that material is now included in the sex-offender database maintained on the Internet by the attorney general.” Williams at ¶ 14, citing
{¶ 36} The type of criminal prosecution an offender is subject to for failing to register in the sex-offender registry or for failing to enroll in the violent offender database are also significantly different. The failure to enroll in the violent offender database constitutes a fifth-degree felony, which carries a presumption of community control.
{¶ 37} Given the many differences between the sex-offender registration statutes and the violent-offender enrollment statutes, we find that the violent-offender enrollment requirements are not so punitive that they impose a new burden in the constitutional sense, as contemplated in Williams. Rather, we find that the violent-offender enrollment requirements are more akin to the arson-offender registration requirements set forth in
with regard to any duties that may or may not have attached following his conviction for murder, he does not have a substantive right in this regard. See id. at ¶ 35; Cook, 83 Ohio St.3d at 414. The violent-offender enrollment statutes are remedial in nature, and the General Assembly could retroactively impose Sierah‘s Law without running afoul of
C. Application of Sierah‘s Law to Appellant
{¶ 38} As it does not offend the Ohio Constitution to apply the violent-offender enrollment statutes retroactively, the next question we must answer is whether the statutes apply to appellant. In his second assignment of error, appellant argues that the trial court “erroneously determined that [he] was required to register with the violent offender database.” We find no merit to appellant‘s argument.
{¶ 39} Appellant pled guilty to murder on March 7, 2019. Thirteen days later, on March 20, 2019, Sierah‘s Law became effective. At the time the law became effective, appellant was in jail awaiting sentencing for the murder offense.5
statutes. See
{¶ 40} Having found appellant‘s assignments of error to be without merit, we hereby affirm appellant‘s sentence for murder.
{¶ 41} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.