720 N.E.2d 603 | Ohio Ct. App. | 1999
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In 1994, defendant Bobby Ward pleaded guilty to one count of attempted felonious sexual penetration of a person under thirteen years of age, an aggravated second degree felony under former R.C.
We stayed resolution of this appeal, as well as all others filed in this court that raised issues relating to the constitutionality of the sexual predator law, pending resolution of State v. Cook (Aug. 7, 1997), Allen App. No. 1-97-21, unreported. In Cook, the Third District Court of Appeals vacated Cook's sexual predator determination because it found R.C. Chapter
"I. H.B. 180, as applied to appellant, violates Art.
The first assignment of error complains that R.C. Chapter
"II. The sexual predator hearing in the case at bar violated appellant's due process rights, guaranteed by the United States and Ohio Constitution, when the hearing failed to comport with the mandates of H.B. 180 which include *557 `witnesses,' `evidence,' and the `right to cross-examine' the evidence against appellant."
The second assignment of error complains that the hearing in this case violated defendant's due process rights because the hearing failed to comport with the mandates of R.C.
Section
The Due Process Clause has been interpreted to contain two components: substantive due process and procedural due process. "Procedural due process" ensures that a state will not deprive a person of life, liberty, or property unless fair procedures are used in making that decision, Zinermon v. Burch (1990),
Procedural due process is a "guarantee of fair procedure." Procedural due process guarantees an affected individual the right to some form of hearing, with notice and an opportunity to be heard, before that individual is divested of a protected interest. See Cleveland Board of Education v. Loudermill
(1985),
In Cook, the Supreme Court stated that the sexual predator law serves "the wholly remedial purpose of protecting the public;" hence, "there is no clear proof that R.C. Chapter
The procedural requirements of the sexual predator law are set forth in R.C.
The court shall give the offender and the prosecutor who prosecuted the offender for the sexually oriented offense notice of the date, time, and location of the hearing. At the hearing, the offender and the prosecutor shall have an opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnesses regarding the determination as to whether the offender is a sexual predator. The offender shall have the right to be represented by counsel and, if indigent, the right to have counsel appointed to represent the offender.
R.C.
Defendant, however, complains that the court violated his right to due process by determining him to be a sexual predator solely on evidence of a prior conviction — something he could not cross-examine. We will address the substance of this claim in our discussion of the third assignment of error. Nevertheless, we wish to emphasize our disagreement in principle with any argument that an offender's prior convictions, standing alone, cannot be clear and convincing evidence that an offender is likely to engage in the future in one or more sexually oriented offenses as required by R.C.
An offender's prior criminal record on all offenses, including but not limited to sexual offenses, is relevant in the court's sexual predator determination. See R.C.
Given that a court can consider a prior conviction, we fail to see how defendant can complain he did not have the right to cross-examine the evidence of his prior conviction. R.C.
We hold that R.C. Chapter
"III. The evidence is insufficient, as a matter of law, to prove "by clear and convincing evidence" that appellant "is likely to engage in the future in one or more sexually oriented offenses."
The third assignment of error raises the substantive issue whether the court had clear and convincing evidence to show that defendant should be classified as a sexual predator. Defendant argues that the state's evidentiary standard to prove an offender is a sexual predator requires more than just certified copies of prior convictions and that standard of proof has not been met in this case.
A sexual predator is defined in R.C.
After reviewing all testimony and evidence presented at the hearing conducted under division (B)(1) of this section and the factors specified in division (B)(2) of this section, the judge shall determine by clear and convincing evidence whether the offender is a sexual predator. * * * If the judge determines by clear and convincing evidence that the offender is a sexual predator, the judge shall specify in the offender's sentence and the judgment of conviction that contains the sentence that the judge has determined that the offender is a sexual predator and shall specify that the determination was pursuant to division (B) of this section. * * *"
The statute requires the court to find by clear and convincing evidence that an offender is "likely to" commit a sexually oriented offense in the future. Stated differently, the standard is whether there exists proof that produces a firm belief or conviction that an offender will more likely than not commit another sex offense in the future.
The factors the court must consider when making a sexual predator determination are set forth in R.C.
(a) The offender's age; *560
(b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed;
(d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims;
(e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;
(f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders;
(g) Any mental illness or mental disability of the offender;
(h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse;
(i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty;
(j) Any additional behavioral characteristics that contribute to the offender's conduct.
When determining whether a person is a sexual predator, the court must consider all relevant factors, including those listed in R.C.
During the sexual predator determination hearing, the state told the court defendant pleaded guilty to one count of felonious sexual penetration, an aggravated second degree felony. The offense involved a threat of force and digital penetration of a five-year-old victim, along with a threat to kill the victim if she told anyone what he had done. The state submitted as its only exhibit a certified copy of the conviction.
Defendant noted the state accurately summarized the history of the case and, making sure it preserved its right to object to the constitutionality of the statute, told the court "we don't have any qualms with anything other *561 than the constitutionality of this. That's all." The state noted it had been prepared to call as witnesses a police detective or the victim, but defendant's stipulation to the facts of the case made such an evidentiary showing unnecessary. Defendant agreed and clearly stated his stipulation to the underlying facts of the felonious sexual penetration conviction. The court found defendant to be a sexual predator based solely on the stipulated facts. The state now argues that this determination was uncontested, thus waiving defendant's right to argue the court's sexual predator determination on appeal.
We disagree with the state's argument that defendant stipulated to being a sexual predator. Defendant stipulated to the facts supporting his conviction on a sexually oriented offense, not that he was, in fact, a sexual predator. This is an important distinction, for if we accept the state's argument it would mean that any conviction for a sexually oriented offense would be irrebutable proof that an offender is a sexual predator. This conclusion cannot hold, because the statute is not "one strike and you're out."
We find support in our conclusion because R.C. Chapter
In this case, the only evidence demonstrating that defendant was "likely to engage in the future in one or more sexually oriented offenses" consisted solely of proof of defendant's conviction on the felonious sexual penetration charge, the age of the victim, and the threat of force both in committing the offense and ensuring the victim's silence after the offense. All this evidence shows is that defendant committed a sexually oriented offense — it does not show by clear and convincing evidence that defendant is more likely than not predisposed to commit another sexually oriented offense. State v. Hicks (1998),
Reference to the factors set forth in R.C.
The remaining factors under R.C.
In this case, the court erroneously believed that it could determine defendant to be sexual predator solely on facts arising from the underlying sexual offense. Although the court erred in this respect, the record suggests there may be other relevant information bearing on the sexual predator determination.
It is important to keep in mind that R.C.
The record shows that a pretrial report had been prepared prior to sentencing, but the court did not consider the contents of that report, or any other evidence on that matter, when making its sexual predator determination.
In State v. Wilson (Sept. 11, 1998), Hamilton App. No. C-970880, unreported, the court considered a very similar case in which a trial court found Wilson to be a sexual predator, but limited its review of evidence in the sexual predator determination hearing to consideration of the indictment, the verdict and judgment entry of conviction. The court of appeals found the trial court's determination could not be made solely upon the uncontested fact of Wilson's underlying conviction and reversed. Citing to information contained in a trial transcript and decision on direct appeal, the court of appeals remanded the case for further consideration of "all parts of the record then available to the court;" parts of the record that may well substantiate the trial court's decision to find Wilson a sexual predator. State v. Wilson, supra, unreported at 4-5; see, *563 also State v. Glynn (Apr. 1, 1998), Medina App. No. 2712-M, unreported 1998 WL 150359.
We therefore sustain the assignment of error and, in conformity with Wilson, remand this matter for further consideration of the record in toto.
IV. APPLICATION OF H.B. 180 IN THE CASE AT BAR VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
The fourth assignment of error raises a constitutional challenge under the Equal Protection Clause of the
R.C.
If a person was convicted of or pleaded guilty to a sexually oriented offense prior to the effective date of this section, if the person was not sentenced for the offense on or after the effective date of this section, and if, on or after the effective date of this section, the offender is serving a term of imprisonment in a state correctional institution, prior to the offender's release from the term of imprisonment, the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated as being a sexual predator. * * *
Simply stated, the Equal Protection Clause guarantees that persons who are similarly situated will be treated similarly. This does not mean that the General Assembly cannot make laws by classifying persons. In Valvoline Instant Oil Change, Inc.v. Tracy (1997),
Of course, most laws differentiate in some fashion between classes of persons. The Equal Protection Clause does not forbid classifications. It simply keeps *564
governmental decisionmakers from treating differently persons who are in all relevant respects alike. F.S. Royster Guano Co. v. Virginia
(1920),
In Am. Assn. of Univ. Professors, Cent. State Univ.Chapter v. Cent. State Univ. (1998),
The standards for determining whether a law runs afoul of equal protection generally involve identifying the means and ends of the law at issue and examining the relationship between them. If the means employed by the law at issue create separate classes of persons who receive different treatment, the laws will be tested under the equal protection guarantee. Otherwise, if no distinctions are drawn and no classifications are created, there is no reason to subject the law to equal protection scrutiny. (citations omitted).
For the most part, "class distinctions in legislation are permissible if they bear some rational relationship to a legitimate governmental objective." State ex rel. Vana v. MapleHts. City Council (1990),
The registration and notification requirements of R.C. Chapter
In State ex rel. Nyitray v. Indus. Comm. (1983),
In R.C.
"(A) The general assembly hereby determines and declares that it recognizes and finds all of the following:
"(1) If the public is provided adequate notice and information about sexual predators, habitual sex offenders, and certain other offenders who commit sexually oriented offenses, members of the public and communities can develop constructive plans to prepare themselves and their children for the sexual predator's, habitual sex offender's, or other offender's release from imprisonment, a prison term, or other confinement. This allows members of the public and communities to meet with members of law enforcement agencies to prepare and obtain information about the rights and responsibilities of the public and the communities and to provide education and counseling to their children.
"(2) Sexual 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.
"(3) The penal and mental health components of the justice system of this state are largely hidden from public view, and a lack of information from either component may result in the failure of both systems to satisfy this paramount governmental interest of public safety described in division (A)(2) of this section.
"(4) Overly restrictive confidentiality and liability laws governing the release of information about sexual predators and habitual sex offenders have reduced the willingness to release information that could be appropriately released under the public disclosure laws and have increased risks of public safety.
"(5) A person who is found to be a sexual predator or a habitual sex offender has a reduced expectation of privacy because of the public's interest in public safety and in the effective operation of government.
"(6) The release of information about sexual predators and habitual sex offenders to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems as long as the information released is rationally related to the furtherance of those goals. *566
"(B) The general assembly hereby declares that, in providing in this chapter for registration regarding sexual predators, habitual sex offenders, and offenders who have committed sexually oriented offenses and for community notification regarding sexual predators and habitual sex offenders who are about to be or have been released from imprisonment, a prison term, or other confinement and who will live in or near a particular neighborhood or who otherwise will live in or near a particular neighborhood, it is the general assembly's intent to protect the safety and general welfare of the people of this state. The general assembly further declares that it is the policy of this state to require the exchange in accordance with this chapter of relevant information about sexual predators and habitual sex offenders among public agencies and officials and to authorize the release in accordance with this chapter of necessary and relevant information about sexual predators and habitual sex offenders to members of the general public as a means of assuring public protection and that the exchange or release of that information is not punitive."
The very nature of enacting laws means that a starting point must be established for all new laws. "`[T]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.'" State ex rel. Lemmon v. Ohio AdultParole Authority (1997),
The General Assembly, having invoked the general welfare of the citizenry and faced with a potential multitude of sexual offenders currently imprisoned or released from imprisonment, could rationally conclude that separating current inmates from released offenders would facilitate the logistical task of identifying and forwarding to the court offenders who might qualify as sexual predators. The General Assembly's decision to delegate the screening authority to the department of correction and rehabilitation suggests that the department may have been the most convenient agency to conduct the screening process since it had ready access to the criminal records of those offenders housed within the state prison system.
There may be other reasons justifying the General Assembly's decision to exclude released offenders from R.C. Chapter
"V. Application of the `clear and convincing evidence' standard in appellant's H.B. 180 hearing violates equal protection, guaranteed by the
In his fifth assignment of error, defendant raises another equal protection argument — that the clear and convincing evidence standard in the sexual predator hearing for those offenders currently imprisoned creates a different classification from those offenders indicted with a sexual predator specification and entitled to have a jury determine the specification by proof beyond a reasonable doubt
Defendant's argument mistates R.C. Chapter
Unlike the remedial aspects of a sexual predator determination, the provisions of the sexually violent predator specification are penalty provisions which enhance an offender's sentence. R.C.
Because there are punitive aspects of the sexually violent predator specification, the law requires that, like any other specification, those aspects be determined by proof beyond a reasonable doubt. This is in direct contrast to the non-punitive notice and registration requirements of the sexual predator law, which need only be established by clear and convincing evidence. Clearly, two separate classes of offenders exist, so there is a rational basis to distinguish between them. Defendant's equal protection argument must fail. The fifth assignment of error is overruled.
"VI. H.B. 180 is void for vagueness since it compels a court to make a preponderance determination based upon clear and convincing evidence."
The sixth assignment of error complains that R.C. Chapter
The Due Process Clause of the
"First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. (footnotes omitted)."
Hence, when a statute is challenged under the due process doctrine of vagueness, a court must determine whether the enactment (1) provides sufficient notice of its proscriptions and (2) contains reasonably clear guidelines to prevent official arbitrariness or discrimination in its enforcement.Smith v. Goguen (1974),
The void-for vagueness doctrine is applicable in this case, if at all, under the subgrouping of statutes that might be said to lack specific standards for enforcement. Defendant complains that courts are required "to determine if it is highly probable that a mere probability exists that a future sex offense will occur" — not a meaningful quantum of evidence in defendant's view.
We do not find the clear and convincing standard of proof to be unconstitutionally vague applied in R.C.
"The void-for-vagueness doctrine does not require statutes to be drafted with scientific precision. Nor does the doctrine require that every detail regarding the procedural enforcement of a statute be contained therein. Instead, it permits a statute's certainty to be ascertained by application of commonly accepted tools of judicial construction, with courts indulging every reasonable interpretation in favor of finding the statute constitutional."
Two separate concepts are embodied in defendant's argument — the likelihood of future conduct and burden of proof required to ascertain whether that future conduct will occur. The likelihood of future conduct and the burden of proof are conceptually distinct ideas that do not conflict in a way that would make the statute unconstitutionally vague.
The court is charged with determining the likelihood that an offender will commit a sexual offense in the future. The word "likely" has a common usage that suggests, as defendant agrees, something more probable than not. In other words, the court must consider whether is it probable that the offender, once released from imprisonment, will commit another sexually oriented offense.
This assessment of probability is both conceptually and practically distinct from the burden of proof. A "burden of proof" is the quantum of evidence placed on the party who is legally required to persuade a trier of fact that the party is entitled to some form of legal redress. In this case, the clear and convincing evidence standard required the state to present evidence that would give the court a firm belief or conviction that defendant was likely to commit another sexually oriented offense in the future.
We find that it is not a logical inconsistency to show a probability of a future event by clear and convincing evidence. There is nothing vague about the clear and convincing standard of proof and its application to the issue whether an offender is likely to commit a sexually oriented offense in the future. The sixth assignment of error is overruled.
"VII. H.B. 180 is an unconstitutional bill of attainder."
The seventh assignment of error challenges R.C. Chapter
Sections 9 and 10, of Article
The determination that an offender is likely to commit a sexually oriented act in the future is not a legislative determination of guilt, nor does it single out identifiable individuals and summarily punish them for past conduct.
The prime component of any claim that a law constitutes a bill of attainder is legislative punishment directed at specific individuals, and defendant cannot make the claim that R.C. Chapter
Accordingly, we find the absence of any punitive element in R.C. Chapter
"VIII. H.B. 180, as applied to appellant, constitutes double jeopardy, in violation of the
The eighth assignment of error complains that the registration and notification provisions of R.C. Chapter
Both the Double Jeopardy Clause of the
The Double Jeopardy Clause embodies three basic protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.Grady v. Corbin (1990),
The applicable double jeopardy component in this appeal is multiple punishment, and as with our previous analysis of defendant's bill of attainder claim, we find on authority ofState v. Cook that R.C. Chapter
The only issue remaining for our consideration is whether thein personam nature of the sexual predator law constitutes a significant difference from the in rem forfeitures validated by double jeopardy law.
In Kansas v. Hendricks (1997),
If the Kansas statute requiring involuntaryconfinement of a person found likely to commit future sexually oriented offenses could be validated (the ultimate in inpersonam punishment), then the less onerous registration and notification requirements of R.C. Chapter
We hold that the notice and registration requirements of R.C. Chapter
"IX. The public notification provisions of H.B. 180, as applied to appellant, violate appellant's constitutional right to privacy."
The ninth assignment of error complains that the notice (not the registration) requirements of R.C. Chapter
Notification requirements for criminal offenders do not violate any fundamental right to privacy. In State v. Jones
(1990),
For example, in Paul v. Davis (1976),
"Respondent's claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere intended to be `private,' but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like *573
this, and we decline to enlarge them in this manner."
Even had defendant properly asserted a right to privacy, that right would only extend to personal information, not information available to the public. Russell v. Gregoire
(C.A.9, 1997),
"(5) A person who is found to be a sexual predator or a habitual sex offender has a reduced expectation of privacy because of the public's interest in public safety and in the effective operation of government.
"(6) The release of information about sexual predators and habitual sex offenders to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems as long as the information released is rationally related to the furtherance of those goals.
The need to protect the public from sex offenders is a legitimate state interest. See Artway v. Attorney Gen. (C.A.3, 1996),
"X. H.B. 180, with its legislated stigma of public notification, constitutes cruel and unusual punishment, in violation of the
The tenth assignment of error complains that the registration and notice requirements of R.C. Chapter
The
As with the bill of attainder and double jeopardy arguments asserted by defendant, we find on authority of State v. Cook
that the notification and registration requirements are remedial in nature, not punitive. Since R.C. Chapter
"XI. Application of H.B. 180 to appellant, who pled guilty to offenses prior to the effective date of this legislation, violated appellant's due process rights and Crim. R. 11, since he could not have been informed of the registration/notification consequences of his plea at the time of his plea."
The eleventh assignment of error complains that defendant's guilty plea, entered before the effective date of the registration requirements of R.C. Chapter
The Due Process Clause of the United States Constitution requires that pleas of guilty or no contest be both knowing and voluntary. Parke v. Raley (1992),
The "consequences" which the court is required to outline for an offender in a Crim. R. 11 colloquy are those that have a "definite, immediate and automatic effect on the sentence." SeeState v. Moore (Aug. 27, 1998), Cuyahoga App. *575 No. 73899, unreported at 1. The rationale behind this statement of law is straightforward — the permutations of different laws, not only in Ohio but throughout the country, applied to different facts arising in each case, would make it impossible for any trial court to apprise an offender of every possible circumstance that might affect an offender's decision to plead guilty. SeeState v. Hill (July 24, 1998), Montgomery App. No. 16791, unreported at 2; State v. Kenney (May 22, 1998), Hamilton App. No. C-970443, unreported.
A consequence of a guilty plea is indirect when the consequences of the plea are subject to discretionary implementation after the plea is submitted. United States v.Willis (C.A.9, 1989),
In State ex rel. Matz v. Brown (1988),
As a convicted felon, defendant had no reasonable expectation at the time of his plea to think that the General Assembly would not thereafter pass some legislation relating to sexually oriented offenses. When the General Assembly did pass legislation relating to sexually oriented offenders, the consequences of that legislation, registration and notice, were remedial, not criminal in nature; hence, they were truly collateral to the underlying criminal offense as they imposed no further penalty on defendant. See Roe v. Farrell, supra,
In any event, as applied to offenders who committed a sexually oriented offense before the effective date of R.C. Chapter
The judgment is affirmed in part and reversed in part and the matter is remanded.
Judgment accordingly.
JAMES D. SWEENEY, J., ANNE L. KILBANE, J., CONCUR.