State v. LawsonState v. Lawson
Rendered on November 13, 2012
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellant.
Yeura R. Venters, Public Defender, and Allen Adair, for appellee.
APPEAL from the Franklin County Court of Common Pleas
BRYANT, J.
{¶1} Plaintiff-appellant, State of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas imposing a 30-month sentence upon defendant-appellee, Mark D. Lawson, following defendant‘s plea of guilty to the crime of failure to register, a third degree felony. The state assigns a single error:
THE COMMON PLEAS COURT ERRED WHEN IT FAILED TO IMPOSE THE MANDATORY THREE-YEAR SENTENCE FOR DEFENDANT‘S FAILURE-TO-REGISTER OFFENSE.
I. Facts and Procedural History
{¶2} On July 9, 2007, defendant pleaded guilty to gross sexual imposition, a fourth degree felony and, on August 3, 2007, was classified as a sexual predator pursuant to former
{¶3} On both May 21, and on November 25, 2009, defendant was convicted of fourth degree felonies of failure to properly register, including failure to provide notice of change of address. By indictment filed May 4, 2011, defendant again was charged with failure to register, a violation of
{¶4} At the sentencing hearing, the state noted defendant was adjudicated a sexual predator following his conviction for gross sexual imposition, requiring him under Megan‘s Law to register for life. The state further pointed out that defendant previously was convicted of felony registration violations. The state therefore argued the court was required to impose a three-year term of incarceration under
{¶5} In a judgment entry dated December 21, 2011, the trial court failed to impose 3-year prison term the state requested, but instead sentenced defendant to a prison term of 30 months.
{¶6} The state‘s single assignment of error contends that since defendant‘s offense for failing to register occurred after the effective date of S.B. 97, the trial court deviated from a statutory command by failing to impose the mandatory three-year sentence. Defendant responds that the trial court could not constitutionally apply the penalties in S.B. 97 to him since his registration duties arise out of his conviction under Megan‘s Law. The parties essentially debate whether sentencing defendant under
{¶7} The Supreme Court of Ohio established a two-part test for determining unconstitutional retroactivity. State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 14, citing Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100 (1988), paragraphs one and two of the syllabus. The first part requires the court to determine whether the General Assembly expressly intended that the statute apply retroactively. LaSalle at ¶ 14. If so, then the second part asks whether the statute is “substantive, rendering it unconstitutionally retroactive, as opposed to merely remedial.” (Emphasis sic.) Bielat v. Bielat, 87 Ohio St.3d 350, 353 (2000), citing State v. Cook, 83 Ohio St.3d 404, 410-11 (1998).
{¶8} “Because
{¶9} The parties do not dispute the general law surrounding unconstitutional retroactivity. Nor do they dispute that
{¶10} Defendant, however, notes that even when the language of a statute indicates only prospective operation, the statue nonetheless may affect pre-existing rights and thus effectively operate retroactively. See State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, ¶ 14, citing Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207, ¶ 14. In such instances, “[t]he retroactivity clause nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].’ ” Bielat at 352-53, quoting Miller v. Hixson, 64 Ohio St. 39, 51 (1901). “A statute is retroactive if it penalizes conduct that occurred before its enactment.” State v. Williams, 103 Ohio St.3d 112, 2004-Ohio-4747, ¶ 7.
{¶11}
{¶12} S.B. 97‘s amendment to
{¶13} Contrary to defendant‘s assertions, the Supreme Court of Ohio‘s holdings in Bodyke and Gingell do not alter our analysis. In Bodyke, the court addressed the provisions of S.B. 10 that directed the attorney general to reclassify offenders who were already classified under Megan‘s Law. Id. at ¶ 1-2. The court concluded the reclassification provisions of S.B. 10 violated the separation of powers doctrine by requiring final judgments to be reopened and by impermissibly vesting judicial authority in the executive branch. Id. at ¶ 55. Concluding severance was the proper remedy for the reclassification provisions, the court severed
{¶14} Less than one year later, in Gingell, the court examined whether an offender who was reclassified under S.B. 10 could be convicted for violating the reporting requirements imposed as a result of the reclassification. Id. at ¶ 1-3. While the appeal raised the question of whether
{¶15} Although defendant was at one point reclassified as a Tier III offender, the record indicates he reverted to his status as a sexual predator under Megan‘s Law in
{¶16} Defendant additionally contends that as a result of the Supreme Court of Ohio‘s ruling in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, he is exempt from the penalties in
{¶17} For several reasons, Williams does not advance defendant‘s contentions on appeal. Initially, unlike Williams, the passage of S.B. 10 did not alter defendant‘s duty to register. Under Megan‘s Law, defendant was required to register for life, and the record reflects defendant‘s awareness of the requirement. Secondly, defendant‘s indictment alleges he failed to register within five days of entering the county, the statutory requirement under Megan‘s Law, even though the current
{¶19} The split seems to hinge on divergent applications of Bodyke and Gingell. Those courts who reach the opposite result in these cases conclude that even when the reporting requirements under Megan‘s Law and S.B. 10 are the same, those offenders who were originally convicted under Megan‘s Law can only be sentenced according to the penalties at the time of their original offense, apparently conflating all future violations of registration orders with the offender‘s original conviction. See Milby at ¶ 31; State v. Williams, 2d Dist. No. 24452, 2012-Ohio-107 (Grady, P.J., concurring). In doing so, those courts do not speak separately of S.B. 97 and S.B. 10, even though the Supreme Court never ruled on the retroactivity of S.B. 97 as applied to offenses that occurred before its enactment. Gingell at ¶ 5; Williams at ¶ 7.
{¶20} The Supreme Court‘s 2011 decision in Williams held that an offender who committed a sex offense before the enactment of S.B. 10 could not be subject to the more extensive reporting requirements enacted after the commission of the offense. Williams at ¶ 21. It, however, did not hold that violations of reporting requirements arising from the sex offense but committed after the enactment of a subsequent statute increasing the penalties for reporting violations could not be sentenced according to current law. Plaintiff‘s assignment of error is sustained.
{¶21} Having sustained the state‘s single assignment of error, we reverse the judgment of the trial court for failing to impose the three-year mandatory sentence
Judgment reversed and cause remanded.
TYACK and CONNOR, JJ., concur.