State v. PetraliaState v. Petralia
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Respondent Appellee).
Richard J. Perez, Rosplock & Perez, Interstate Square Building I, 4230 State Route 306, #420, Willoughby, OH 44094 (For Defendant-Petitioner-Appellant).
MARY JANE TRAPP, P.J.
{¶1} John J. Petralia, II, appeals from a judgment of the Lake County Court of Common Pleas, which determined Mr. Petralia was properly reclassified as a Tier III offender and denied his Petition Contesting Classification. For the following reasons, we affirm the judgment of the trial court.
{¶2} Mr. Petralia pled guilty to two counts of gross sexual imposition, felonies of the third degree, in violation of
{¶3} Mr. Petralia filed a petition with the Lake County Court of Common Pleas, requesting a hearing on the application of the new law to him. The trial court held a hearing on May 21, 2008, and found that Mr. Petralia did not prove by clear and convincing evidence that the new registration requirements do not apply to him. The court therefore found him to be properly reclassified as a Tier III offender. The court further determined Mr. Petralia is subject to community notification under the current
{¶4} Mr. Petralia timely appeals and raises the following assignments of error:
{¶5} “[1.] The trial court erred when it denied appellant‘s petition challenging reclassification and reclassified his sex offender status, pursuant to Ohio‘s Adam Walsh Act, Senate Bill 10, an unconstitutional body of laws.
{¶6} “[2.] The trial court erred when it denied appellant the opportunity for a hearing pursuant to
{¶7} “Ohio‘s new sexual offender law was adopted by the Ohio General Assembly in Senate Bill 10. The legislation was enacted so that the state law would be consistent with the federal Adam Walsh Child Protection and Safety Act of 1996.
{¶8} “Prior to Senate Bill 10, when a criminal defendant was found guilty of a sexually oriented offense, he could be classified as a sexually oriented offender, a
{¶9} “Under the new legislation, those three labels are no longer applicable. Instead, a defendant who has committed a sexually oriented offense can only be designated as either a sex offender or a child victim offender. There are now three tiers of sexual offenders. The extent of the defendant‘s registration and notification requirements will depend on the tier. Furthermore, the placement in a tier turns solely on the crime committed.
{¶10} “Another change of the sexual offender classification system implemented under the new law concerns the duration of the registration and notification requirements for the sex offenders. Prior to Senate Bill 10, if a defendant was deemed a sexually oriented offender, he was required to register once each year for a period of 10 years, but there was no notification requirement; if he was labeled as a habitual sex offender, he had to register once every six months for 20 years, and the community could be given notice of his presence at the same rate; and, if he was designated a sexual predator, the duty to register was once every three months for life, and notification could also take place at the same rate for life.
{¶11} “Under the new statutory scheme set forth in current
{¶12} Under his assignment of error, Mr. Petralia raises several constitutional claims. This court has addressed and rejected the majority of these claims in a unanimously decided case in State v. Swank, 11th Dist. No. 2008-L-019, 2008-Ohio-6059, and in Charette (O‘Toole, J. dissenting).1
{¶13} Separation of Powers
{¶14} First, Mr. Petralia asserts that the new law violates the doctrine of separation of powers. Specifically, he claims it usurps the court‘s prior adjudication of
{¶15} “The Seventh District evaluated a similar claim in State v. Byers, 7th Dist. No. 07CO39, 2008-Ohio-5051, and found no violation of the doctrine of separation of powers. The Seventh District adopted the following analysis provided in State v. Slagle, 145 Ohio Misc.2d 98, 2008-Ohio-593:
{¶16} “‘[T]he Assembly has enacted a new law, which changes the different sexual offender classifications and time spans for registration 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. Application of this new law does not order the courts to reopen a final judgment, but instead simply changes the classification scheme. This is not an encroachment on the power of the judicial branch of Ohio‘s government.’ Byers at ¶73, quoting Slagle at ¶21 and citing [Smith at ¶39] and [G.E.S. at ¶42] (discussing the issue in relation to child-victim offender).
{¶17} “Furthermore, as this court noted already, the registration and notification scheme of the new legislation is not punitive in nature, but rather civil and remedial. Swank at ¶99. The judiciary is empowered to hear a controversy between adverse parties, ascertain the facts, and apply the law to the facts to render a final judgment. Id., citing Fairview v. Giffee (1905), 73 Ohio St.183, 190. In the criminal context, the judiciary is empowered to determine if a crime has been committed and the penalty to
{¶18} Ex Post Facto Clause
{¶19} Mr. Petralia claims the retroactive application of Ohio‘s Adam Walsh Act to him constitutes an ex post facto law proscribed by Article I, Section 10 of the United State Constitution. That section provides: “[n]o State shall *** pass any *** ex post facto Law.” Under this provision, “any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, *** is prohibited as ex post facto.” Beazell v. Ohio (1925), 269 U.S. 167, 169-170. We have addressed this constitutional claim fully in Swank, and held that Senate Bill 10 enacted by the General Assembly is civil in nature and not punitive in intent or effect and therefore not an ex post facto law.2 Id. at ¶68-89.
{¶20} Retroactivity
{¶22} Double Jeopardy
{¶23} Mr. Petralia next claims his reclassification constitutes successive punishment and is therefore a double jeopardy violation pursuant to the Fifth and Fourteenth Amendments of the United States Constitution, and Article I, Section 10 of the Ohio Constitution, all of which forbid the imposition of multiple criminal punishments for the same offense in successive proceedings.
{¶24} The double jeopardy provision has been interpreted to apply in two basic situations: (1) when the state tries to pursue a second prosecution based upon the same facts; and (2) when the state attempts to impose a second punishment for the same offense. Byers at ¶100 (citations omitted). The double jeopardy prohibition can only be invoked when the conduct of the government involves criminal punishment. State v. Williams (2000), 88 Ohio St.3d 513, 528.
{¶26} Because we have determined that the new registration and notification requirements are still to be characterized as civil and non-punitive, the Williams holding would still be controlling as to the present version of
{¶27} Substantive Due Process Rights and Privacy
{¶28} Mr. Petralia also argues that the residency restrictions imposed by Senate Bill 10 violate the substantive component of the Due Process Clause in the Fourteenth Amendment to the United States Constitution and in Section 16, Article 1 of the Ohio
{¶29} We have considered and rejected this constitutional claim in Swank. There, the appellant also claimed the residency restrictions “violate his substantive due process rights because it interferes with a liberty interest tantamount to being on parole or his right of privacy.” Id. at ¶108. We stated:
{¶30} “[C]ourts routinely decline such challenges unless evidence is presented that the defendant was actually injured by the residency restriction on the ground of waiver. State v. Bruce, 8th Dist. No. 89641, 2008-Ohio-926, ¶10-11. Appellant has failed to show or even argue that he owns property or resides within 1,000 feet of any of the above-listed facilities or that he was forced to move outside this limit. As a result, appellant‘s argument that S.B. 10 has interfered with his liberty or privacy interest fails because he has not shown that he has been actually injured by S.B. 10.
{¶31} “Moreover, a defendant lacks standing to challenge the constitutionality of a residency restriction unless the record shows the defendant suffered an actual deprivation of his property rights as a result of the application of such restriction to him. State v. Pierce, 8th Dist. No. 88470, 2007-Ohio-3665, ¶33. Because appellant has failed to show an actual deprivation of his property rights, he does not have standing to challenge the residency restriction of S.B. 10.” Swank at ¶110-111. See, also, State v. Amos, 8th Dist. No. 89855, 2008-Ohio-1834, ¶43, citing the syllabus of Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 169 (the Supreme Court of Ohio held that “[t]he 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
{¶32} Similarly here, the record does not show Mr. Petralia has suffered an actual injury from any residency restrictions imposed by Senate Bill 10, and therefore, we find his claim to be without merit.
{¶33} Impairment of Contracts
{¶34} Finally, Mr. Petralia asserts that the application of the provisions of Senate Bill 10 to him would violate the terms of his plea agreement and therefore would result in a breach of his contract with the state, in violation of the constitutional provisions against the impairment of contracts.
{¶35} A plea agreement is considered a contract between the state and a criminal defendant. As a result, such an agreement is subject to the general laws of contracts. State v. Butts (1996), 112 Ohio App.3d 683, 685-686. Therefore, if one side violates a term of a plea agreement, the other party has a right to pursue certain remedies, including the rescission of the agreement. State v. Walker, 6th Dist. No. L-05-1207, 2006-Ohio-2929, ¶13.
{¶36} However, in applying the elementary rules of contract law to plea agreements, the courts of Ohio have held that an alleged breach of such an agreement cannot be based upon an action which occurs following the performance of the various terms. See, e.g., State v. Pointer, 8th Dist. No. 85195, 2005-Ohio-3587, ¶9. That is, once a criminal defendant has entered his guilty plea and punishment has been imposed by the trial court, a breach of contract can no longer occur because both sides have fully performed their respective obligations under the plea agreement. Because
{¶37} Removal of Right of Review
{¶38} Under the first assignment of error, Mr. Petralia also maintains
{¶39} The same claim was raised by the defendant in State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, who objected to Senate Bill 5‘s elimination of the right of review provided in the former
{¶40} The first assignment of error is overruled.
{¶42} In his second assignment of error, Mr. Petralia claims he was denied the opportunity for a hearing pursuant to
{¶43}
{¶44} The court held a hearing on May 21, 2008, and found Mr. Petralia to be properly classified as a Tier III offender. Despite the fact that he is now before this court challenging the outcome of that hearing, he claims to have been deprived of a hearing to contest his reclassification.
{¶45} The record reflects at the hearing Mr. Petralia claimed he was misclassified. He argued even though the trial court had previously adjudicated him as a sexual predator, his conviction for gross sexual imposition would place him in the Tier II category under the new law, and therefore he should now be reclassified as a Tier II offender instead.
{¶47} We find the trial court‘s interpretation of the statute to be correct. Although
{¶48} The trial court conducted a hearing as required by
{¶50} For the foregoing reasons, we affirm the judgment of the Lake County Court of Common Pleas.
TIMOTHY P. CANNON, J., concurs in judgment only with Concurring Opinion.
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
TIMOTHY P. CANNON, J., concurring in judgment only.
{¶51} Petralia had previously been adjudicated a sexual predator and, therefore, he did not have an expectation of finality in his prior adjudication. For the reasons stated in this court‘s opinion in State v. Ettenger, 11th Dist. No. 2008-L-054, 2009-Ohio-3525, at ¶56-59 & 84, the application of Ohio‘s Adam Walsh Act to Petralia is not unconstitutional. As stated in Ettenger, “a lifetime of reporting is a lifetime of reporting.” Id. at ¶84.
{¶52} The judgment of the trial court should be affirmed.
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶53} Appellant, John J. Petralia‘s, reclassification as a Tier III Sex Offender pursuant to the Adam Walsh Act, unconstitutionally nullifies his prior classification in a final order of a court of competent jurisdiction as a sexual predator, in violation of the
{¶54} “It is well settled that the legislature has no right or power to invade the province of the judiciary, by annulling, setting aside, modifying, or impairing a final judgment previously rendered by a court of competent jurisdiction.” Cowen v. State ex rel. Donovan (1920), 101 Ohio St. 387, 394; Bartlett v. Ohio (1905), 73 Ohio St. 54, 58 (“it is well settled that the legislature cannot annul, reverse or modify a judgment of a court already rendered“). This limit on the legislature‘s power is part of the separation of powers doctrine. “The 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.
{¶55} In effect, the separation of powers doctrine applies the principle of res judicata, typically used as a bar to further litigation by parties, to legislative action. Cf. Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, at paragraph one of the syllabus (“[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action“).
{¶56} In the present case, the trial court‘s September 7, 2000 Judgment Entry, finding that Petralia was a sexual predator and notifying him of his duty to register as a sexual predator, constituted such a final judgment. Once the period for appeal had passed, Petralia‘s classification became a settled judgment, which neither Petralia nor
{¶57} The majority states that “[a]pplication of this new law does not order the courts to reopen a final judgment, but instead simply changes the classification scheme.” I disagree. “When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than ‘reverse a determination once made, in a particular case.‘” Plaut v. Spendthrift Farm, Inc. (1995), 514 U.S. 211, 225, quoting The Federalist No. 81 (J. Cooke ed. 1961), at 545.
{¶58} It is not disputed that the General Assembly has full authority to enact new laws and alter the classification of sexual offenders. The application of any new law to persons already classified as sexual offenders, whose judgments have become final, however, necessarily results in those prior final judicial decisions being re-opened, contrary to the principles of separation of powers and res judicata.
{¶59} The majority also emphasizes that the new registration scheme “is not punitive in nature, but rather civil and remedial.” However, reliance upon the remedial nature of the legislation is misplaced. “The doctrine of res judicata *** applies equally to criminal and to civil litigation.” Akron v. Smith, 9th Dist. Nos. 16436 and 16438, 1994 Ohio App. LEXIS 1859, at *4 (citation omitted).
{¶60} The General Assembly‘s stated purpose in enacting the Adam Walsh Act, “to provide increased protection and security for the state‘s residents from persons who
{¶61} For the foregoing reasons, I would reverse the decision of the court below and reinstate the trial court‘s September 7, 2000 Judgment Entry, requiring Petralia to register as a sexual predator.