*1 In RE R.A. R.A.,
[Cite as In re
134 Ohio
O’Connor, C.J., and Lanzinger, Cupp, Stratton, O’Donnell, Brown, JJ., concur. McGee J., dissents.
Pfeifer, Deters, Joseph T. Hamilton County Prosecuting Attorney, Adams, and Paula Assistant Prosecuting Attorney, for appellee.
Timothy Young, Defender, Ohio Public Sheryl Trzaska, A. Assistant Public Defender, for appellant. Appellant. Ohio, Appellee, Raber, State Raber, as State v.
[Cite
134 Ohio
Appeals trial to At is whether the court plea imposition. one count issue guilty after year a Tier I sex more than a authority classify to him as offender retained sexually offense. of a final of conviction for a oriented entry judgment 2950.03(A)(2) duty of the a trial court to a sex offender notify R.C. directs sexually at of a for a oriented sentencing as the time register sex 2950.01(B)(2)(a), However, one who commits a pursuant R.C. offense. register a sex has no the offense oriented offense is not offender—and —if with a victim or consensual sexual contact” involved “consensual sexual conduct authority of the years perpetrator. who is not under the custodial over old whether the disputed At on sentencing parties November activity. The court offense issue here involved consensual sexually consent, a lack of but state opportunity afforded the state an to demonstrate so, did not trial sentenced Raber but subsequently to do court failed not have a the trial court did Notably, him to as sex offender. register order as its determination register pending as a sex offender duty to order Raber conduct, its without judgment entered having consensual nature of into the requirement, implicitly incorporated judgment finding that no duty register. Raber has The court lacked to reopen therefore its to reconsid-
4}{¶ prior its or to er find the sexual to be nonconsensual and Raber as a Tier sex offender more than a after it had year addition, sentence. In original punitive because sex-offender now nature, protections the court double-jeopardy subsequently barred from classi- Raber as a I sex new fying year offender at a held more than a proceeding its original after sentence. Accordingly, court of appeals is reversed. History
Facts and Procedural On February 18-year-old Kyle 18-year-old his 6}{¶ *3 in girlfriend former in engaged consensual intercourse her bedroom. then Raber her asked for anal sex. Athough request, proceeded. she denied his he 4, A Wayne County grand jury 2008, him on April indicted on count 7} one {¶ of battery, felony degree, 28, sexual a of the 2008, third and on Raber October guilty an pled to count of imposition, third-degree amended sexual a misdemean- or. 26, At the on hearing held November parties 8} the
{¶ disputed whether the misdemeanor for imposition conviction sexual required offender, 2950.01(B)(a) to register Raber as a sex because R.C. does not require registration if the offense involved with consensual over another age of At hearing, the 18. the sentencing only hearsay statements of Raber’s girlfriend presented former were on the issue of The parties consent. agreed the sex-offender-registration brief question, and the trial court took the matter However, under advisement. parties issue, the never on submitted briefs the and 1, 2008, on December the court judgment, sentencing entered in Raber to 60 days (30 jail of fine, them suspended), imposing a and ordering years two $500 community Significantly, control. the court did not sex as a offender and did not him provide register with notice of a sex as a offender. Thereafter, on October 2009—more than ten months after its entering court,
judgment conviction—the trial sua sponte, scheduled a hearing November 2009. No transcript hearing of this appears record. The day, however, judge next inexplicably transferred the matter to a different 2, 2010, who judge, presided hearing over on evidentiary March to determine whether Raber should be classified as a sex I subject offender registra- At tion. that the victim that hearing, testified she had consented to sex vaginal not to anal judge but intercourse. The second trial then the sexual found conduct subject I as a Tier sex offender and classified Raber to be nonconsensual notice the court April provided on hearing and at another registration, the next classification, journalized court I of Raber’s Tier original sentencing. 14 months after the day, more than two-year Raber from the trial court released August On community imposed. control earlier term I to the Ninth District Court his Tier classification appealed order, was a final and that his 2008 conviction
Appeals, claiming
December
the sex-
therefore,
no
to hear and decide
jurisdiction
court had
that an
rejected
arguments, holding
these
offender-registration issue. The court
from the
a
constitutes a separate
order
sex offender
sentence,
therefore,
trial court had not
and
and
underlying conviction
after
14 months
modified final order when
jurisdiction modify
conviction
court of
appeal.
final
failed to
He notes that
judgment when
state
imposition
of sex-offender
construing
relied on caselaw
appeals
Law,
civil,
law,
but he maintains
which is
remedial
pursuant Megan’s
*4
current
pursuant
cases
to the
of a sex offender
apply
those
do not
classification
punitive.
which
has
to be
State
Chapter
R.C.
this court
now held
Williams,
344,
354 Accordingly, the issue becomes whether the trial court had authority Raber as sex offender 14 months after entering its judgment of
conviction. Analysis
Law and S.B. 10 (“S.B. 10”) In January 2007 Am.Sub.S.B. No. 10 took effect. It repealed Ohio’s prior sex-offender-classification replaced scheme and it with a system three-tiered classifying sex offenders automatically, based on the offense an conviction: adult Tier offender is required to register with the county sheriff every year for 15 years; adult II offender required to register every days years; for 25 and a Tier III offender is required to register every 2950.01(E) for days life. (G), 2950.07(B). R.C. through 2950.06(B), and S.B. 10 requires sex offenders to personally register in the county or counties in which reside, they school, 2950.04(A)(2). attend and work. R.C. 2950.03(A)(2) R.C. directs the trial court to notify a sex offender of the register a sexually offense, oriented providing:
Regardless of person when the committed sexually oriented offense or child-victim offense, if person is an offender who is sentenced on or after January 2008 for any offense, (A)(1) if division already [offenders under of this section confinement] does not apply, the judge shall provide the notice to the at the time sentencing. added.) (Emphasis Notably, however, 2950.01(B)(2) R.C. states that a person who commits
a sexually oriented offense is not a sex offender
if the offense involves consensual sexual conduct or consensual sexual contact and either of the following applies:
(a) The victim of the sexually oriented offense was eighteen years age or older and at the time of oriented offense was not under the custodial authority of the person of, who is to, convicted pleads guilty has *5 of, been convicted has pleaded to, guilty adjudicated is a delinquent child for committing, or has adjudicated been a delinquent child for committing the sexually oriented offense.
(b) The victim of the offense was thirteen years older, of or age person of, who is to, convicted pleads guilty of, has been convicted has pleaded to, guilty adjudicated is a delinquent child for committing, or has
355 committing the adjudicated delinquent been a child than victim. years more four older the offense is not than 2950.01(B), duty no there is pursuant a to R.C. If the is not sex offender register. to the state case, 26, sentencing hearing, 2008 at November In this file a nor activity, the sexual did prove to the lack of consent to
failed a lack of demonstrating to in the record pointing brief evidence supplemental finding of without entered a conviction consent. The court thereafter notifying to and without subject to be a sex offender no existed duty a on its determination duty register, presumably him of to being activity’s on consensual. based See, to all judicial proceedings. attaches regularity A of presumption Edwards, (1952); v. 175, 183, 105 259 State St. N.E.2d
e.g., State v.
157 Ohio
Robb,
(1995);
Sweet,
375,
St.3d
376,
72
450
v.
88 Ohio
Ohio St.3d
650 N.E.2d
State
(2000).
trial
59, 87,
Here,
regarding
silent
Reconsideration
Final
lack
recognized
have
that “trial courts
previously
We
{¶20}
in criminal
rel. White
judgments
reconsider their own valid final
cases.” State ex
Junkin,
(1997),
rel.
citing
267
ex
v.
686 N.E.2d
State
(1992).
Reed,
trial
although
Hansen v.
63 Ohio
N.E.2d 1324
And
continuing
and to correct
jurisdiction
courts retain
correct
void sentence
Zaleski,
in
ex
judgment,
clerical error
State
rel. Cruzado
Ohio St.3d
¶
tion after
the sexual
to be consensual
which,
mistake,
involved.
fails
a clerical
ages
those
The state
to demonstrate
Cruzado,
omission,
in
explained
as we
in
“‘refers to a mistake or
mechanical
record,
or
legal
nature and
on
which does not involve a
decision
apparent
”
819-820,
Brown,
App.3d
Id. at
State v.
136 Ohio
judgment.’
quoting
(3d Dist.2000).
in
demonstrates error
356 Jeopardy
Double
court previously upheld
prior
registration
This
sex-offender
statutes
In
Assembly
enacted
the General
against
challenge.
constitutional
State v.
Williams,
513, 528,
(2000),
88 Ohio St.3d
728
342
we
N.E.2d
held that because
Megan’s
punishment,
Law did not
did
necessarily
not
the Double
violate
Jeopardy
of the Fifth
Clause
Amendment
the United States Constitution.
7,
in
Ferguson,
States
multiple
punish-
of
criminal
ments for
States,
the same
in
proceedings.
offense
successive
Hudson v. United
93, 99,
(1997);
Husein,
522 U.S.
118 S.Ct.
139
450
L.Ed.2d
United
v.
States
(6th Cir.2007).
478 F.3d
338
As the United
Court
States
for the
Appeals
D.C. Circuit has
“If a
explained,
defendant
a legitimate
has
expectation of
finality, then an
in that
prohibited by
increase
sentence is
the double jeopardy
(D.C.Cir.1987).
clause.”
Fogel,
United States v.
829 F.2d
87
* *
*
Although we
recognized
have
“[w]here
the sentence
void,
reasonable,
was unlawful and thus
there can
legitimate
be no
expectation
it,”
finality in
State v.
117
Simpkins,
sentence the trial when court entered its of conviction on December protections Jeopardy prohibited Double Clause the trial case, court from reopening separate this trial to determine conducting whether as a sex consensual, here was at issue the sexual subject registration. to Tier
Conclusion the case to reconsider this reopen court lacked The trial {¶ 27} barred jeopardy entered, against double protections and the it had judgment final after it year than a more a Tier I sex offender Raber as it from is reversed. appeals the court of the Accordingly, sentence. reversed. Judgment JJ., concur. and McGee Lundberg Brown, Stratton, Cupp, Pfeifer, J., only. concurs Lanzinger, C.J.,
O’Connor, dissents. C.J., dissenting.
O’Connor, Kyle which law, offense for sexually the oriented a matter of As no reason, trial court had For that was nonconsensual. was convicted consent. on the issue of evidentiary hearing in an engaging business of R.C. violation imposition of sexual was convicted that the offender knows contact if 2907.06(A)(1), “[t]he sexual prohibits which * * * in that or is reckless person to the other contact is offensive sexual a conviction that is consistent with both factual scenario There is no regard.” offender, contained of sex exception to the definition that subsection and under Accordingly, contact. 2950.01(B)(2), for cases of consensual in R.C. require- mandated statutorily duties was of sex-offender imposition it to do. law required to do what the But the trial court failed in this case. ment by defense got distracted Instead, prosecutor the trial court {¶ 30} sexual contact consented to some the victim had argument that because counsel’s triggered. requirement was Raber, to the consent-exception with the burden that the state had proposition the defense’s erroneous accepted Both conviction) (in order to secure the was offensive not that the contact only to prove (in Offensive registration). to secure the order that it was also nonconsensual but wholly inapplicable. was is, nature, exception The nonconsensual. contact trial court acted unrea- applicable, if had been exception Even consent issue. of the the case for consideration by continuing sonably anally that Raber demonstrated time of in the record evidence that he committed Raber admitted sentencing, victim. At raped for an There was no need “mad.” gotten he had offense because evidentiary hearing consent, because the factual issue of thereof, or lack was clear. The trial court ultimately did what was required by law:
registration. We should affirm. I dissent. Desiderio,
Jason B. for appellee. T. Eager Todaro,
David and David M. for appellant. *8 IndyMac Bank, Appellee, F.S.B., Federal Investments, v. OTM al., Appellant. Anthony, Exr.,
Inc. et
IndyMac
Bank,
Fed.
Invests.,
F.S.B. OTM
[Cite
as
Inc., Ohio St.3d
O’Connor, C.J., Pfeifer, Stratton, O’Donnell, Lanzinger, Brown, JJ., and McGee concur. Cupp,
The Law Clunk, Offices of John D. Whitacre, Jason A. Infante, Laura C. Christopher Kovach, M. for appellee.