STATE OF OHIO, PLAINTIFF-APPELLEE, v. LARRY DEAN HUDSON, DEFENDANT-APPELLANT.
CASE NO. 9-12-38
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
February 25, 2013
[Cite as State v. Hudson, 2013-Ohio-647.]
PRESTON, P.J.
Appeal from Marion County Common Pleas Court Trial Court No. 11-CR-0647. Judgment Affirmed.
APPEARANCES:
Brent W. Yager for Appellee
PRESTON, P.J.
{1} Defendant-appellant, Larry Dean Hudson, appeals the Marion County Court of Common Pleas’ judgment entry of conviction and sentence stemming from his failure to provide notice of his change of address for purposes of his sexual offender registration. For the reasons that follow, we affirm.
{2} On September 26, 1996, Hudson was convicted of gross sexual imposition in the Court of Common Pleas for Marion County, Ohio in Case Number 96-CR-0207, a felony of the fourth degree.1 Hudson was sentenced to a term of six (6) months in prison with the sentence to run consecutively to a twelve (12) month prison
{3} At the time of Hudson‘s 1996 conviction, Ohio was operating under the federally mandated Jacob Wetterling Act, 42 U.S.C. §§ 14071, et seq., codified in
{4} The Ohio General Assembly passed H.B. 180, the State‘s version of the federally mandated Megan‘s Law, with an effective date of July 1, 1997. On that date, Hudson was still serving the term of imprisonment for gross sexual imposition imposed in 1996. Therefore, he was subject to the provisions of the new Megan‘s Law pursuant to the newly enacted
{5} While still incarcerated, Hudson was notified by the Ohio Department of Rehabilitation and Corrections and the trial court that his sex offender registration status would be determined pursuant to the 1997 version of
{6} On October 21, 1997, the trial court determined, without a hearing, that Hudson was not a sexual predator. Other than the court order issued on October 21, 1997, no other court or parole board has ever held a hearing to determine Hudson‘s duty to register as a sex offender.
{7} On or about October 30, 1997, Hudson was notified by the Marion County Sheriff‘s Office that he would be required to register as a sexually oriented offender upon his release from prison; that he would be required to register for a period of ten (10) years; and, that he was required to register with the Sheriff‘s office by November 5, 1997.
{8} Since October 1997, Hudson had served four (4) additional prison terms, including terms of incarceration of four (4) years, six (6) months, eight (8) months and fourteen (14) months for convictions stemming from non-sex offenses in 2000, 2006, 2007, and 2010. No additional duties to register as a sex offender were imposed on Hudson in any of these subsequent convictions.
{9} Since his initial registration date, Hudson had registered with the Marion County Sheriff‘s Office and has signed several notices of explanations of duties to register.
{10} On March 31, 1999, Ohio‘s 1998 H.B. 565 became effective, which was codified under newly enacted
{11} On August 1, 2008, Ohio‘s version of the federally mandated Adam Walsh Act became effective. Subsequently, the Ohio Attorney General designated Hudson as a Tier II sex offender. Hudson was notified that he would have to register for twenty-five (25) years with verification every 180 days after the initial registration.
{12} On June 2, 2011, Hudson was released from prison on a 2010 conviction. He registered at his sister‘s address at 412 East Farming Street, Marion, Ohio as his residence with the Marion County Sheriff‘s Office. He was informed by the Agency that he was required to comply with the provisions of the Adam Walsh Act.
{13} On August 23, 2011, the Marion County Sheriff‘s Office in conjunction with the U.S. Marshall‘s Office conducted a county-wide sweep to check sex offender registrations. On arriving at Hudson‘s registered residential address, it was discovered he had not lived there for more than one (1) month.
{14} Hudson failed to notify the Marion County Sheriff‘s Office that he was no longer residing at 412 East Farming Street, Marion, Ohio.
{15} On the annual verification date for Hudson‘s sex offender registration, Hudson did not appear at the Sheriff‘s
{16} On December 15, 2011, Hudson was arrested by officers of the Marion County Sheriff‘s Office. He advised the arresting officers that he failed to notify the Sheriff‘s Office of the change of address as he was homeless on leaving his sister‘s residence.
{17} The only conviction that could impose a duty upon Hudson to register as a sex offender was his 1996 conviction for gross sexual imposition.2
{18} On December 21, 2011, the Marion County Grand Jury indicted Hudson on Count One of failure to provide notice of change of address in violation of
{19} On December 27, 2011, Hudson was arraigned and entered a plea of not guilty. (Doc. No. 5).
{20} On February 22, 2012, Hudson filed a motion to dismiss the indictment arguing that he was no longer required to register as a sex offender since his ten-year registration period had already expired. (Doc. No. 16).
{21} On March 1, 2012, the State filed a memorandum in opposition to Hudson‘s motion to dismiss, arguing that Hudson was a “sexually oriented offender,” by operation of Megan‘s Law enacted in
{22} On March 13, 2012, Hudson filed a memorandum in opposition to the State, arguing that the application of
{23} On April 24, 2012, the trial court overruled Hudson‘s motion to dismiss. (Doc. No. 32).
{24} On May 24, 2012, the trial court held a change of plea hearing. (Doc. No. 43). Upon the State‘s motion, the trial court dismissed the indictment; Hudson waived the requirement for an indictment; and, Hudson pled no contest to a bill of information charging him with one count of failure to provide notice of change of address in violation of
{25} On July 5, 2012, Hudson filed a notice of appeal. (Doc. No. 48). Hudson now appeals raising two assignments of error for our review.
The tolling provision contained in
O.R.C. § 2950.07(D) is unconstitutional as it violatesSection 28, Article II of the Ohio Constitution because (1) the General Assembly did not express a clear declaration that the tolling provision would be applied retroactively, and (2) the tolling provision is punitive as it applies to pre-1998 H.B. 565 offenders.
{26} In his first assignment of error, Hudson argues that his ten-year registration period under Megan‘s Law commenced on his release from prison, October 29, 1997, and therefore, terminated on October 29, 2007. Hudson argues
that
{27} This case requires both the interpretation of a statute and a determination regarding its constitutionality, which are issues of law we review de novo. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 8 (statutory interpretation); City of Akron v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-4095, ¶ 23 (9th Dist.) (constitutionality); Andreyko v. City of Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, ¶ 11 (1st Dist.) (same). De novo review is independent, without deference to the lower court‘s decision. See Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
{28} “An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional, it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State v. Cook, 83 Ohio St.3d 404, 409 (1998), quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. “That presumption applies to amended
¶ 12, citing Cook, 83 Ohio St.3d at 409; Roosevelt Properties Co. v. Kinney, 12 Ohio St.3d 7, 13 (1984).
{29} Notwithstanding the presumption of constitutionality,
{30} To determine whether a statute may be applied retroactively requires a two-part test. Consilio at ¶ 10; Ferguson at ¶ 13. First, the reviewing court must determine, as a threshold matter, whether the General Assembly expressly made the statute retroactive. Consilio at ¶ 10, citing LaSalle, at ¶ 14, citing Van Fossen, 36 Ohio St.3d 100, at paragraphs one and two of the syllabus; Ferguson at ¶ 13-14. “The General Assembly‘s failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively.” Consilio at ¶ 10; Ferguson at ¶ 13. If the statute is retroactive, though, the reviewing court
must then determine whether it is substantive or remedial in nature. Consilio at ¶ 10, citing LaSalle at ¶ 14; Ferguson at ¶ 13.
{31} As amended by Am. Sub. H.B. 565,
The duty of an offender to register under this chapter is tolled for any period during which the offender is returned to confinement for any reason or imprisoned for an offense when the confinement or imprisonment occurs subsequent to the date determined pursuant to division (A) of this section. The offender‘s duty to register under this chapter resumes upon the offender‘s release from confinement or imprisonment.
(Emphasis added) (Eff. 3-30-99).
(A) Each offender who is convicted of or pleads guilty to, or has been convicted of or pleaded guilty to, a sexually oriented offense
and who is described in division (A)(1), (2), or (3) of this section shall register with the sheriff of the following applicable county and at the following time:
(1) Regardless of when the sexually oriented offense was committed, if the offender is sentenced for the sexually oriented offense to a prison term, a term of imprisonment, or any other type of confinement and if, on or after July 1, 1997, the offender is released in any manner from a prison term, term of imprisonment, or confinement, within seven days of the offender‘s coming into any county in which the offender resides or temporarily is domiciled for more than seven days, the offender shall register with the sheriff of that county.
(Emphasis added) (Eff. 3-30-99).
{32} Hudson acknowledges that the Ohio Supreme Court has already determined that the General Assembly intended
application governs. Hudson relies heavily upon the Ohio Supreme Court‘s decision in Hyle v. Porter in support of his position. 2008-Ohio-542.
{33} In Hyle v. Porter, the Ohio Supreme Court analyzed the retroactivity of
No person who has been convicted of, is convicted of, or has pleaded guilty to, or pleads guilty to either a sexually oriented
offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises.
Id. Hyle, the chief legal officer of Green Township, obtained a permanent injunction prohibiting Porter, a convicted sex offender, from continuing to occupy his residence that was located within 1,000 feet of a school premises. Id. at ¶ 5. Porter appealed the trial court‘s injunction, but the appellate court affirmed holding that
{34} On appeal to the Ohio Supreme Court, Hyle argued that the General Assembly expressed its intent to apply
{35} The Ohio Supreme Court rejected each of these arguments, however. The Court determined that the statute‘s use of past and present tense verbs to describe the types of sex offenders and the statute‘s description of the prohibited acts presented a mere ”suggestion of retroactivity” rendering the statute “ambiguous” and was not a “clear declaration of retroactivity * * * sufficient to overcome the presumption of prospective application” Id. at ¶ 13 (emphasis sic).
The Court also rejected Hyle‘s argument that
{36} In a subsequent case, however, the Ohio Supreme Court determined that the legislature intended the S.B. 5 amendments to
{37} The Court‘s retroactivity analysis in Ferguson differed from its retroactivity analysis in Hyle. Initially, the Court in Ferguson, consistent with its analysis in Hyle, examined the text of
sections themselves. Id. at ¶ 18-25; Id. at ¶ 48-50 (Lanzinger, J., dissenting). Instead, the Court reasoned that the General Assembly intended retroactive application of these provisions since the Court had interpreted the former statute governing sex-offender classifications,
{38} Hudson urges this Court to follow the Ohio Supreme Court‘s retroactivity analysis in Hyle and not its retroactivity analysis in Ferguson. Hudson‘s arguments notwithstanding,
{39}
as part of an already-existing statutory registration scheme. Also, unlike
{40} Like the statutory provisions at issue in Ferguson, our retroactivity analysis of
{41} Next, we must determine whether
4009, at ¶ 14; Ferguson, 2008-Ohio-4824, at ¶ 13. The Court of Appeals for the Second District has already determined that
Given that the ten-year registration and address verification requirements in the “Megan‘s Law” version of R.C. Chapter 2950 can be applied retroactively, Cook, supra, we conclude that the tolling provision extending the ten-year period when an offender is re-incarcerated is likewise remedial in nature.
Id.
{42} We agree with the Second District that if the registration requirement itself is remedial, then a tolling provision that further effectuates the remedial purpose of that requirement is also remedial in nature. In enacting Megan‘s Law, the General Assembly declared:
[s]exual predators and habitual sex offenders pose a high risk of engaging in further offenses even after being released from imprisonment, a prison term, or other confinement and that protection of members of the public from sexual predators and habitual sex offenders is a paramount governmental interest.
{43} Since
{44} Hudson‘s first assignment of error is, therefore, overruled.
Assignment of Error No. II
The trial court erred in denying Appellant‘s motion to dismiss as the tolling provision of former
O.R.C. § 2950.07(D) violated Appellant‘s rights to due process of law.
{45} In his second assignment of error, Hudson argues that
{46} As an initial matter, we note that Hudson did not raise this issue before the trial court; instead, he focused on the retroactive application of S.B. 10, The Adam Walsh Act (AWA), and the retroactive application of
Hudson argued that, as applied to him,
{47} Now, on appeal Hudson raises several procedural due process arguments. The failure to raise an issue in the lower court waives all but plain error on appeal. State v. Lorraine, 66 Ohio St.3d 414, 416 (1993), citing State v. Moreland, 50 Ohio St.3d 58 (1990) and State v. Broom, 40 Ohio St.3d 277 (1988). Nevertheless, the denial of basic procedural due process amounts to plain error under
{48} The right to procedural due process is protected by the
424 U.S. 319, 332 (1976), quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972), the basic requirements of procedural due process are notice and an opportunity to be heard. Hayden, 2002-Ohio-4160, at ¶ 6, citing State v. Hochhausler, 76 Ohio St.3d 455, 459 (1996).
{49}
{50} The record indicates that Hudson was provided with such notice on multiple occasions, including: October 30, 1997, August 13, 2003, November 24, 2004, December 9, 2004, July 13, 2005, September 21, 2005, April 26, 2006, September 11, 2006, May 7, 2007, August 17, 2007, September 2, 2008, February 6, 2009, August 5, 2009, May 20, 2010, and June 15, 2011. (Joint Ex. 7). The parties also stipulated that, on June 2, 2011 upon his release from prison, Hudson registered his sister‘s address at 412 East Farming Street, Marion, Ohio as his residence with the Marion County Sheriff‘s Office. Now, on appeal Hudson alleges that he thought his duty to register ended on October 29, 2007—yet the
notices he received and his own actions refute that claim. Consequently, we are not persuaded that Hudson lacked notice of his continued duty to register.
{52} Moreover, we note that Hudson was not entitled to a hearing to challenge his initial duty to register as a sexually oriented offender since that duty attached as a matter of law. Former
matter of law. Since Hudson was not entitled to a further hearing to challenge his initial duty to register as a sexual offender, we conclude that he was not entitled to a further hearing to challenge his continued obligation to register per
{53} Hudson‘s second assignment of error is, therefore, overruled.
{54} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr