State v. Williams

Appellant. Ohio, Appellee, Williams, The State Williams, as [Cite 2011-Ohio-3374.] (No. 2011.) July 2009-0088 Submitted March 2011 Decided J. Pfeifer,

Factual Background and Procedural Williams, November appellant, George was indicted for unlawful minor, contact with the fourth felony degree under R.C. 2907.04. Williams, The “being older, indictment stated that eighteen years age did engage another, offender, sexual conduct with not the spouse of the when the person years knows such other is thirteen of age or older but less than years age, sixteen or the offender is reckless in regard.” Williams pleaded guilty open court. During plea trial court colloquy, the twice subject stated Williams’s conviction would him to require- ments. subsequently Williams moved to be sentenced under the version of R.C.

Chapter 2950 in effect the time that committed argued he the offense. He major changes Chapter 2950 took effect on January and that sentencing law and reporting apply “[t]he law that should to the Defendant is the law that in was effect at the time of criminal conduct and the time of plea.” motion, The state opposed arguing point Williams could not any justification law, basis for his motion or for the trial to ignore because none existed. The trial court the motion. denied would be that he informed was hearing, Williams sentencing At his of R.C. current version under the II sex offender a Tier

designated 10”). (“S.B. Williams judge ordered No. 10 Am.Sub.S.B. being was in which he resided, county in the in which he in the person notice written “provide employed, in he was educated, county which and in the addresses, Internet information, e-mail of vehicle any change days three within of 25 period “for a addresses numbers,” verify and to telephone identifiers 2950.04, 2950.05, days.” See every 180 verification person years 2950.07(B)(2). 2950.06(B)(2),and 10 cannot of S.B. provisions argued Williams appeal, On

{¶ 4} 1, July occurred before offense to a defendant whose constitutionally applied be court, trial of the and affirmed the decision disagreed appeals The court of Bill 10 do of Senate provisions and registration “the classification concluding that Williams, v. on retroactive laws.” State ban not violate the Ohio Constitution’s ¶ 5052748, 112. 2008-Ohio-6195, CA2008-02-029, 2008 WL 12th Dist. No. Williams, v. discretionary appeal. State Williams’s accepted We 2009-Ohio-1820, 1449, 904 N.E.2d 900. St.3d Ohio

Analysis S.B. of convicted sex in the treatment step one of an evolution S.B. 10 is 266, Bodyke, 2010- of Ohio. See

offenders the state ¶ narrow, it is us is 753, Because the issue before Ohio-2424, 3-28. 933 N.E.2d that history. discuss necessary again registration for the classification statutory scheme The and when he the offense the time Williams committed in effect at Law, Title Section of the federal his Ohio’s version plea, entered Laws, II, 180,146 Part Ohio U.S.Code, No. was enacted Am.Sub.H.B. (“S.B. 5”), 150 No. 5 in 2003 Am.Sub.S.B. significantly and was amended scheme, S.B. was enacted Laws, IV, statutory The current Part Ohio Act, seq., et Title Section 16901 on the federal Adam Walsh and is based 10: an under S.B. changed for sex offenders classification scheme U.S.Code. The registration requirements subject to additional offender is now ¶ Bodyke at 24-28. for a time. See requirements longer those subject whose crime person to a changes, applied these when issue us is whether before against prohibition violate the to the enactment committed was States 10, Article I of the United contained in Section facto laws post ex laws contained Section against retroactive prohibition or the Constitution 10 violates the conclude that S.B. Because we II of the Ohio Constitution. Article Constitution, we need not discuss whether S.B. 10 also violates the United Constitution. States against

Prohibition retroactive laws 28, Article II of Constitution general “[t]he Section the Ohio states shall no assembly power pass analyzing have retroactive laws.” When retroactive, Porter, we unconstitutionally two-part Hyle statute is use test. ¶ part 7-9. In the first of the test, Assembly expressly “ask whether General made the statute retroac tive.” Id. at Van Fossen v. & 8. See Babcock Wilcox Co. Ohio St.3d (“The syllabus of the paragraph one issue whether a may constitutionally statute be arise applied retrospectively does not unless there specified has been a determination that General 2950.03, apply”). example, imposes statute so 1, January 2008, for offenders on or regardless sentenced after of when the offense was committed. portion Because this S.B. 10 was intended to apply test, turn retroactively, part requires we now to the second the us to determine whether the are statutory provisions Hyle substantive or remedial. at ¶ Consilio, 295, 2007-Ohio-4163, 8. See also State v. 114 St.3d 871 N.E.2d ¶ 1167, 10. Stewart, 473, 2010-Ohio-1860, In Pratte v. 415, 125 Ohio St.3d 929 N.E.2d

{¶ 9} ¶ 37, we stated that is that “[i]t well established is if statute substantive it impairs or takes vested away rights, right, affects accrued substantive imposes burdens, duties, new or additional or obligations, past liabilities to a transac tion, Fossen, 107, or right. creates new Van 36 Ohio at 522 St.3d N.E.2d 489. laws, however, Remedial affecting only remedy are those provided, the merely include laws that substitute a new or more appropriate remedy for the existing (2000), enforcement of an right.” See Bielat v. Bielat 87 Ohio St.3d 721 (1901), quoting N.E.2d Miller v. Hixson 64 Ohio St. 59 (“The retroactivity N.E. 749 clause nullifies those new that ‘reach laws back and burdens, duties, create new new new obligations, new liabilities at existing ” sic]). the time statute becomes [the effective]’ [bracketed material 5 v. punitive

S.B. S.B. 10 and remedial v. consistently This court has 2950 Chapter held “R.C. is remedial {¶ 10} Ferguson, statute.” v. 120 State Ohio St.3d 896 N.E.2d ¶ stated, 29. We have also “There is no absolute test to determine whether punitive retroactive statute is so violate prohibition as to the constitutional ” laws; against post ex such a is a degree.’ determination ‘matter of State facto (1998), 404, 418, Cook v. 700 N.E.2d 570. In we examined the (1963), 144, 168-169, guideposts Kennedy listed v. Mendoza-Martinez U.S. 372 punitive a statute determining for 9 L.Ed.2d 83 S.Ct. of protect- solely purpose remedial the 2950 serves Chapter that “R.C. concluded 570. Cook ing public.” This 5. by S.B. issued, 2950 was amended Chapter was R.C. After Cook Chapter R.C. effected changes despite concluded again 2008-Ohio-4824, Ferguson, statute. a remedial

2950 was statutory governing scheme pertaining Some factors N.E.2d First, statutory punitive. was offenders, however, scheme suggested placed were of sex offenders classification registration and for procedures Second, with certain comply code, failure R.C. Title criminal within Ohio’s to criminal prosecution. subjected a sex registration requirements 2950.99. wrote follows: Lanzinger Ferguson, Justice In dissent (1998), Ohio Cook rely State majority continues “Although considered retroactive 570, the first case that N.E.2d

St.3d simple 2950.09(B), 2950 has been amended. Chapter application R.C. those now different procedures are and notification registration process and in Williams Cook considered Ias punitive from remedial has been transformed

342. R.C. argued: have previously “ more current laws are comparisons show following ‘The First, the and Cook. Williams than those issue

complicated and restrictive 2950.07(B)(1), offenders, R.C. adult predator” permanent is now label “sexual Former having removed. possibility offenders had the previously, whereas Laws, II, 180, 146 Part 2621-2623. 2950.09(D), No. Ohio Am.Sub.H.B. R.C. longer are no demanding more and therefore Second, duties are now license, had as a driver’s Cook renewing to inconvenience of comparable the as classified Cook, N.E.2d 570. Persons 83 Ohio St.3d at analogized. of in which the sheriff the register now with personally sex offenders must 2950.04(A). must reside, predators Sexual work, and to school. R.C. they go R.C. every days, three different sheriffs register potentially personally having inconvenience of 2950.06(B)(1)(a), slight to the hardly comparable which is Third, community notification four every years. renewed one’s driver’s license statements, information, or photographs, any that has to the extent expanded much of record and public are required provide an offender is fingerprints maintained on in database the sex-offender that material is now included Cook, it we considered R.C. 2950.081. attorney general. Internet be could by sex offenders information to sheriffs provided that the significant Cook, at of group people. only disseminated to restricted 2950. Chapter R.C. Fourth, have been added new restrictions 700 N.E.2d initially Assembly, Enacted as of Sub.S.B. No. 125th General part approved July 31, offenders, all prohibits just 2950.031 classified sex not those children, 1,000 of against convicted sex offenses within feet residing any of fifth, a premises. permitted request school And sheriff is now that the sex manager verify offender’s landlord or the of the sex offender’s residence that the 2950.111(A)(1). at currently registered sex offender resides address. R.C. 2950.111(C), According designee to R.C. sheriff or of a sheriff “[a] is limited may in the number under requests be made this section regarding notice, registration, verification, provision or or of times the number that the confirm, may sheriff designee attempt in manners than the other manner * * * section, provided currently this at the resides address in question.” “ protection public ‘While is goal the avowed of R.C. Chapter

2950, we cannot deny obligations imposed that severe upon are those classified as All predators sex offenders. and most habitual sex are expect ed, lives, for the remainder their their residences and their Moreover, employment with local sheriffs. this information will be accessible to all. stigma attached to significant, sex offenders is potential exists harassment, Id., for ostracism and as the Cook court recognized. 83 Ohio St.3d Therefore, N.E.2d I do not believe that we can continue to label proceedings these as civil in nature. These restraints liberty are the consequences specific criminal convictions and be recognized should part punishment imposed is result of the offender’s actions.’ State Wilson, ¶ (Lanzinger, 45-46 J., concurring part and dissenting part).” Ferguson, 120 Ohio St.3d 2008- Ohio-4824, J., 45-47 (Lanzinger, dissenting). Following the enactment of S.B. all doubt has

{¶ been removed: R.C. 16} Chapter 2950 punitive. The statutory changed scheme has dramatically since this court described the registration process imposed on sex offenders as an “comparable inconvenience renewing a driver’s license.” 700 N.E.2d 570. changed markedly And has this since court concluded in Ferguson that 2950 was remedial. Under the statutory scheme effect at the time Williams committed offense, he was entitled to a hearing which a court would determine he should be as a predator, classified a habitual sex or offender a offender,

habitual child-victim or a oriented sexually offender. The court would statutory have considered various in making factors its determination. Former 2950.09(B)(3), Laws, IV, R.C. Am.Sub.S.B. No. Part 6689-6690. Under S.B. is as a Williams classified Tier II sex solely offender based on the his or of the crime committed, to circumstances regard without offense he (G). (F), 2950.01(E), to R.C. likelihood reoffend. registration subject to not have been might Under Williams S.B. not be that he would Williams trial twice informed

requirements. on his classification based Under S.B. register to as sex offender. required subject registration to offender, automatically is II Williams as Tier sex he county in the where to register person him obligate requirements attends school. works, county in the where he resides, he in the where 2950.04(A)(2). R.C. sex to as a register have required been Williams could Under S.B. Laws, 2950.07(B)(3), 150 Ohio Former R.C. period years. for a of ten

offender when Williams by judge comments made IV, upon Based Part at 6681-6683. Under S.B. required register. to likely would not have been plea, entered his he R.C. years. for 25 register is to as sex offender required Williams 2950.07(B)(2). as their classifications longer challenge offenders are no allowed Sex the offense. depending is automatic on

sex because classification sex offenders general, Judges longer no review the sex-offender classification. are longer They and for a of time. period are more often required register 2950.06(B) places. and in different required person several 2950.07(B). Furthermore, apply without registration requirements all the Instead, registration of the sex offender. regard dangerousness future solely are on the fact of conviction. other based requirements statutory governing these to the scheme significant changes Based on remedial, even offenders, 2950 is longer we no convinced are as a sex We conclude that of it remain remedial. though some elements 10, the act to the enactment of S.B. prior whose crime was committed offender duties, burdens, past or liabilities obligations, or additional “imposes new ¶ 37, Pratte, transaction,” Ohio St.3d burdens, duties, liabilities obligations, new new new new “create[s] Miller, time,” 59 N.E. 749. at the 64 Ohio St. existing is It is a change punitive. one our conclusion S.B. compels No punitive application that its retroactive degree matter of whether a statute is so we consider 700 N.E.2d 570. When unconstitutional. imposing aggregate, conclude changes all enacted S.B. committed a sex whose crime was requirements current we conclude that S.B. Accordingly, 10 is punitive. to the enactment enactment, to its who committed sex offenses to defendants applied Constitution, prohibits II of the Article violates Section laws. passing retroactive General

Conclusion Assembly authority, The General has the obligation, indeed the 22} {¶ not, however, the protect public may from offenders. It consistent with the Constitution, burdens, duties, Ohio new or additional “impose[] obligations, or Pratte, a past 473, 2010-Ohio-1860, liabilities as to transaction.” If 929 N.E.2d the of S.B. 10 are imposed Williams, the Assembly imposed burdens, General has new or additional duties, obligations, liabilities to a transaction. past We conclude that S.B. applied to Williams and other sex offender who committed offense prior the enactment of S.B. violates Section Article II of the Ohio Constitution, which prohibits Assembly General from enacting retroactive laws. We reverse the of judgment appeals the court of and 23} remand the cause

{¶ resentencing under the law effect at the time Williams committed offense.

Judgment reversed and cause remanded. Lundberg O’Connor, C.J., Brown, JJ., and McGee Stratton, Lanzinger, concur. Cupp, JJ., dissent.

O’Donnell

O’Donnell, J., dissenting. I respectfully dissent. Consistent with prior holdings of this court in Wilson, State Cook Ohio St.3d 700 N.E.2d State v. 113 Ohio 382, 2007-Ohio-2202, St.3d Ferguson, and State v. the registration and notification require (“S.B. 10”)

ments Am.Sub.S.B. No. are civil in nature do not Retroactivity violate the Clause Constitution. every And federal circuit that has considered similar federal sex-offender registration and notification requirements they has held that bemay applied. retroactively For reasons, these I affirm judgment would appellate court. Ohio General adopted legislation has accordance with

legislation enacted by the United Congress States in an effort create a national, system uniform registration. sex-offender long-standing prece- Our recognizes dent the legislature’s authority policy make decisions for reasons Moreover, public safety public welfare. having considered the constitutional- ity statutes, sex-offender-registration this court has consistently held both that those constitute a regulatory statutes civil designed protect scheme retroactively bemay the statutes and that public from known sex past. in the offenses sexually oriented have committed individuals who

applied to statutory view, substantially depart 10 does not my that it violates court, majority decision today’s by this upheld enactments also precedent, our but sync with only is not out Retroactivity Clause has addressed similar court of every appeals circuit federal precedent with requirements. sex-offender-registration Registration

Sex-Offender requires Clause Retroactivity S.B. 10 violates The question statutes, No. 180 Am.Sub.H.B. sex-offender-registration a review the by Am.Sub. II, 2560, amended (“H.B. 180”), Laws, subsequently Part 146 Ohio interpret- (“S.B. Laws, IV, our decisions 5”), Part and 150 Ohio No. 5 ing those statutes. Law

Megan’s known as H.B. better Assembly enacted In the General {¶28} compre- and established 2950 That act revised R.C. “Megan’s Law.” The legislature and registration. classification of sex-offender system hensive regardless when retroactively, apply its intent the act expressed 2950.04(A), Ohio committed, R.C. former sex had been underlying offense who II, 2609-2610, for offenders penalties and criminal Laws, provided Part at 2950.99, 146 R.C. requirements. Former its comply failed to Laws, II, at Part 2634-2635. Ohio into categories sexually three Megan’s Law divided sex offenders — offenders, See former offenders, predators. and sexual habitual sex

oriented 2950.09(A) Laws, II, 2950.04(A) (E), Part at 146 Ohio R.C. and and II, 2950.06(B)(2), Laws, at 2950.04(A), Part 146 Ohio 2623-2624. Former R.C. Laws, II, anyone 2950.07(B)(3), provided at 146 Ohio Part sexually oriented classified as sexually oriented offense be convicted of ten period for subject reporting to annual offender be date after the effective sexually for a oriented offense years. upon If a conviction conviction for a previous that the offender had judge statute a determined 2950.09(E), Laws, II, at Part offense, 146 Ohio R.C. sexually oriented former offender, a habitual sex the offender adjudicate the court required years pursuant for to annual thereby subjecting Laws, II, 2950.06(B)(2) 2950.07(B)(2), Part at 146 Ohio R.C. former reporting require- most stringent reserved General specifica- of a sexual-predator who had been convicted for offenders either ments adjudicate an order predator. a court to be a sexual adjudicated by tion or offender as a sexual the trial court had to predator, hearing conduct a to consider of reoffending, the offender’s likelihood at which right the offender had the counsel, testify behalf, on his own and to cross-examine witnesses. Former 2950.01(E) 2950.09(B), Laws, II, Part 2618-2619. life, required predators every Law to report days former 2950.06(B)(1) 2950.07(B)(2), Laws, II, 146 Ohio Part unless the court 2950.09(D), removed classification pursuant former R.C. Laws, II, 146 Ohio Part at 2621-2623. Megan’s Law all required sex offenders to with the sheriff in they in which resided or were temporarily domiciled for more than 2950.04(A), days. Laws,

seven II, Former R.C. 146 Ohio Part at 2609. It required address, to provide a current residence the name and any address of employer, other information required by the bureau of criminal identification and investigation, and a photograph. Former R.C. 2950.04(C), Laws, II, Part Additionally, required law predators and habitual sex provide offenders to the plate license number of each motor vehicle owned registered in the offender’s name. Id. and/or Challenges

Constitutional to Megan’s Law We have considered several to the challenges constitutionality 32} of {¶ Me- gan’s facto, Law involving retroactivity, ex post due-process concerns, in case, each analysis our requirements addressed whether the law the enacted were punitive or civil in nature. In (1998), State v. Cook 700 N.E.2d we

considered the constitutionality of Megan’s Law applied to offenders who committed sexually oriented offenses before the effective date of the statute. We that held law not did violate Constitution, Section Article II of the Ohio Clause, Retroactivity because registration requirements provided in the act were necessary to achieve the legislature’s purpose remedial of protecting the public from sexual offenders. Id. Although at 412. we recognized Megan’s Law increased the frequency and duration beyond of required by law, at id. we determined that provisions only these past events “us[ed] to establish current status” and “de constituted minimis procedural require- necessary ments” act, to achieve the purpose id. Additionally, rejected we an ex post facto challenge Megan’s

Law, explaining that the statute did not contain any language expressing an intent to punish conduct, for prior id. at 417. Nor could it be considered punitive practical effect, Rather, id. at 423. the statutory scheme furthered legislative the stated purpose protecting public from sexual offenders. Id. While weighing seven nonexhaustive forth guideposts set

353 644,1 554, L.Ed.2d (1963), 83 S.Ct. U.S. v. Mendoza-Martinez Kennedy or further disability a affirmative not new impose that the act did we determined comparable an inconvenience imposed but punishment, aims the traditional concluded 420. Because we of a driver’s license. Cook the renewal remedial, nature, we held but punitive, were not the registration the Ex Post violate Law did not Megan’s retrospective application that the at 423. Facto Id. Clause. N.E.2d In State v. Williams not Law did Megan’s and held that because our decision Cook upon

relied Clauses the Double necessarily Jeopardy not violate did impose punishment, the United States and the state Ohio. the Constitutions of 211, 2002-Ohio-4169, N.E.2d Hayden, 96 Ohio St.3d In State v. to procedural right violated offender’s Megan’s Law we considered whether a by imposing and Ohio Constitutions by the United States process due afforded conducting first without sex-offender-elassification-and-registration requirement Williams, that an we determined holdings to our in Cook and Adhering hearing. of the de nor a result bodily punishment suffers neither restraint Law; thus, classification requirements imposed by minimis interest, and due liberty process protected property did not interfere with to be finding conduct a before defendant require hearing did not a court to ¶ 14-15,18. offender. Id. sexually oriented Megan’s Law amending enacted S.B. the General offense that regardless sexually of when oriented provide occurred, personally sex offenders had

registration-exempt (a) domiciled for they temporarily or were county resided sheriff of (b) (c) school, days than 14 worked for more days, more five attended than and/or 2950.04(A)(1), year. a calendar Former R.C. days or for an 30 aggregate IV, duty act a Laws, imposed upon Part at 6657-6658. The 150 Ohio address of their their but also the only not home address report 2950.06(A), Laws, Part 150 Ohio place employment. and Former R.C. school restraint, ‘[wjhether disability an guideposts involves affirmative 1. include the sanction “These play only a historically regarded punishment, it into comes it has been as whether whether scienter, punishment— operation promote finding will the traditional aims whether its crime, deterrence, applies already an it is whether and behavior which retribution it, rationally assignable it may and whether purpose which it be alternative connected * * (Footnotes omitted.)” Cook, assigned purpose appears the alternative excessive in relation to 554, Mendoza-Martinez, 83 S.Ct. quoting 372 U.S. at 9 644. L.Ed.2d IV, at 6673. Adult predators offenders classified as sexual no longer could 2950.07(B)(3) petition 2950.09(D)(1), designation. remove the Former R.C. Laws, IV, Additionally, 150 Ohio Part provided any the act by information provided sex offenders to the sheriff was available for public it inspection, attorney directed the an general establish Internet database providing 2950.081, this information to the public. Former R.C. 2950.13(A)(11), Laws, IV, Part 6728-6729. Challenges

Constitutional to S.B. 5 Wilson, In 2007-Ohio-2202, civil, we considered whether Law remained a regulatory scheme follow its ing by amendment S.B. 5. The issue Wilson an concerned whether appellate apply court should a civil or criminal standard of review ato trial court classify decision not to an offender predator. Adhering to our Williams, decisions Cook and we held that proceed sex-offender-classification ¶ nature, ings were not criminal id. at notwithstanding increased burdens and reporting requirements by established S.B. 5. We therefore con cluded courts reviewing sexual-predator-classification outcome of hear ings apply should the civil manifest-weight-of-the-evidence standard and affirm a judgment trial court supported by if was competent, some credible evidence. ¶ Wilson at 32. Ferguson, State v. 2008-Ohio-4824, Ohio St.3d N.E.2d retroactivity post addressed challenges ex facto to R.C. by

amended Although S.B. 5. we recognized that the “may pose significant law (now often offenders,” harsh consequences for then Justice O’Connor Chief Justice), court, writing for the explained that the amendments by enacted S.B. 5 ¶ had not “transmogrified the punitive remedial statute into one.” Id. at 32. Further, we acknowledged the General Assembly’s “clear reaffirmation of an protect intent to public from sex offenders” and concluded that “the more * * * burdensome were not born a desire to “ ¶ punish.” Id. at Recognizing ‘consequences 35-36. as drastic as deporta- tion, deprivation livelihood, of one’s termination financial support have been considered sufficient to transform avowedly regulatory measure into ” one,’ punitive we determined that the imposed additional burdens by S.B. 5 did ¶ punishment. not amount (C.A.2, Id. at quoting 1997), Doe v. Pataki F.3d 1279. Accordingly, we held that the amendments enacted did not violate the retroactivity clause of the Ohio Constitution. Id. at Furthermore, based on our civil, conclusion that R.C. 2950 established a scheme, regulatory rejected remedial Ferguson’s ex post related facto chal- lenge. Id. at 43.

S.B. 10—The Adam Act Walsh July Congress On enacted the Adam Walsh Child Protection {¶ 40} (“Adam Act”) Safety and Act express Walsh with the intent children protect “[t]o crime, from exploitation and violent to prevent child abuse and child pornography, promote safety, Internet and to honor the memory of Adam Walsh and other child crime victims.” Title of the Adam Walsh Child Protection Act, 109-248, Safety and Pub.L. 120 Stat. 587. The act establishes the Sex (“SORNA”) Registration Offender and Notification Act with purpose the stated creating uniform national classification and standards to protect public sex offenders and child-victim-oriented offenders. Section 16901 et seq., Title U.S.Code. Additionally, Congress designed SORNA with the intent “to eliminate potential gaps loopholes under pre-existing standards by means of which sex offenders could attempt registration evade require- ments or the consequences violations.” Section Title C.F.R. Act, To comply with the Adam Walsh the General Assembly passed S.B.

10 in June 2007. S.B. 10 repealed scheme, Ohio’s sex-offender-classification replacing it with a system three-tiered classifying automatically based on the offense of conviction: an I adult Tier offender is required register every year for 15 years; an adult Tier II required offender is to register every days years; for 25 and a Tier III required register offender is every days for life. 2950.01(E) 2950.07(B). (G), 2950.06(B), through Law, As did the S.B. 5 amendments to requires also offenders to personally register the sheriff of the or counties which they reside, school, 2950.04(A)(2) 2950.041(A)(2). attend and work. R.C. However, the act reduces the amount of time that an offender may reside or be temporarily in a county domiciled without registering from five to days, three an offender must any county which the offender works for more than three days for an aggregate period of or more days the calendar (shortened year from 14 days days and 30 respectively). Additionally, R.C. 2950.10 and 2950.11 require provide the sheriff to

victims, if the information is requested, members, and to certain community name, address, offense, notice of the photograph III registered Tier Further, offenders. R.C. 2950.13 continues duty attorney of the general maintain a state registry sex offenders for law enforcement and an Internet database providing information on sex offenders to the public.

S.B. 10 is Civil Remedial Scheme The enactment of brought S.B. 10 has the same types challenges to its constitutionality that we previously rejected considered and in our review in of law established to the rule Adherence Law and its amendments. because S.B. 10 arguments these new rejection requires decisions our registration. of sex-offender regulatory system not altered significantly has Assembly provisions intended that the General dispute There is no Thus, determining whether S.B. retroactively. purposes for to apply of S.B. 10 Constitution, the question Retroactivity Clause of Ohio 10 violates the “ under rights acquired vested away impairs ‘takes the statute or attaches a new duty, a new laws, obligation, imposes a new existing or creates ” Cook, 83 already past.’ in transactions or considerations disability, respect to (1889), 46 570, Seasongood v. quoting Cincinnati 700 N.E.2d Ohio St.3d 296, 303, 21 N.E. 630. Ohio St. Nonetheless, retroactivity analysis in that “Ohio Ferguson we clarified burdens; increased prohibits only punishment.”

does not all increased prohibit ¶ Further, 7, 2008-Ohio-4824, as we 896 N.E.2d Walls, a v. explained State law, if it is a remedial retroactively is not unconstitutional operates statute ‘ affecting merely laws “the methods which we have defined to mean “those * * * enforced, rights recognized, protected are procedure[s] ’ ” sic.) quoting Id. at Bielat Bielat (Emphasis themselves.” rights (2000), Weil v. Taxicabs quoting N.E.2d St.3d Cincinnati, 39 N.E.2d 148. Inc. 139 Ohio St. O.O. punishment infliction of on sex provide 10 does not for the S.B. Assembly expressed its therefore is a remedial law. General offenders and civil, safety system designed “protect a remedial intent to establish public protection,” of this state” and to general people “assur[e] welfare of the 2950.02(B),in determination that offenders and child-victim light “[s]ex its after sexually in further abusive behavior even pose engaging a risk of * * * 2950.02(A)(2). confinement,” As- The General being released from necessary laws are sex-offender-registration sembly’s legislative finding danger a because pose present because sex offenders protect public —not inflicted on them —deserves deference. punishment additional should be civil, Further, 10 is a very recently this court has determined S.B. 2010-Ohio-2123, law, Clayborn, remedial explaining are civil nature proceedings that “sex-offender-classification ¶at standard.” Id. require manifest-weight-of-the-evidence a civil case, for filing appeal whether the time limitation we considered classifying appeal judgment in a to the from applies criminal or civil case period that the limitations Although II offender. we held defendant as a Tier Wilson, Ferguson, applied, relying criminal cases appeals we nonetheless determined that “an from a appeal sexual offender classification is a matter within judgment civil the context of criminal case.” Id. to the Contrary majority’s position, the fact that the sex-offender- provisions appear the criminal code and that the classification

categories directly are linked to convictions for specific offenses does not make Rather, 10 punitive in nature. the General found that past conviction for a offense is an sex indication of the threat that a present sex offender poses public, to the have previously recognized legislature past Cook, may events to establish current status.” “us[e] legislature employed While the could have an individualized risk assess-

{¶ 50} offender, ment of the danger posed by a sex no constitutional mandate exists requiring (2003), 84, 104, such measures be used. See Smith v. Doe 538 U.S. (the 123 S.Ct. 155 L.Ed.2d 164 “determination to with legislate respect to class, convicted sex offenders as a than require rather individual determination of their dangerousness, does not a punishment” make the statute for purposes of the Clause). Ex Post Facto Moreover, part of system the national of sex-offender

{¶ 51} notification, in response federal mandate for states to comply losing risk funds them, federal otherwise allocated Section Title U.S.Code, I, II, the General has classified individuals Tier or III sex offenders they based on the offense of which in were order to convicted establish in Ohio the national identification standards for these offenders. The United States Congress Act, enacted the federal Adam Walsh which Ohio adopted 10, specifically to solve “deficiencies law that had prior enabled sex offenders to * * * slip through cracks [b]y facilitating the collection of sex-offender jurisdictions.” information and its among dissemination Carr United States (2010),-U.S.-, 2229, 2240-2241, 130 S.Ct. L.Ed.2d Thus, all purpose sex classifying offenders into tiers based on the offense conviction is not to punish Rather, an offender. the General Assembly sought system establish a provides for the sharing efficient of information about sex offenders necessary safeguard the public from potentially dangerous individuals. The provisions require S.B. 10 do to register offenders more

often, places, more and for a longer period formerly time than required by laws, but this does not mean that the statute violates the Retroactivity Cook, explained created, Clause. As the court “where no right vested has been ‘a later not enactment will burden or attach a new to a disability past transaction sense, or consideration in the past constitutional unless the transaction or ” * * * consideration created at expectation least reasonable of finality.’ v. Brown State ex rel. Matz quoting Nonetheless, emphasized the court 525 N.E.2d 805. “ post ex laws regard protections against to constitutional ‘[ejxcept facto * * * conduct mil never right expect no that their have reasonable felons ” sic.) Id., (Emphasis quoting Matz subject legislation.’ be made the thereafter at 281-282. for past not inflict on sex offenders punishment Because S.B. does

crimes, who committed sex offenses provisions its to defendants applying Retroactivity does not violate the Clause. date of its enactment supported by Supreme view is the United States Court’s decision This Smith, upheld L.Ed.2d Alaska’s sex- U.S. 123 S.Ct. post challenge. statute an ex facto offender-registration against (1) not resemble traditional registration requirements determined that the did in that not they place public display means of did punishment (2) 97-99, information, imposed instead disseminated accurate id. ridicule but restraint, no offenders free to live and work without direct physical leaving (3) promote punishment id. at traditional aims supervision, did (4) 102, objective, legislature’s regulatory so as to overcome the id. were not retributive, report of those who had to corre- categories because reasonably of the related to the sponding length reporting requirement were (5) 102, recidivism, danger regulatory objective, consistent with the id. at were regulatory despite related to the the lack of an individualized rationally purpose, 102-104, (6) recidivism, the risk of id. at were not assessment of excessive of recidivism regulatory purpose given high posed relation to the stated risk offenders, at 104. by sex id. of the statute practical negate legisla- Because effect did scheme, regulatory

ture’s intent to a civil the United stated establish States that it Supreme impose punishment Court held did not and therefore did not Ex Post Facto of the United Id. 105- violate the Clause States Constitution. Moreover, every appeals federal circuit court of to consider whether the (SORNA), Congress Act Registration passed by Sex Offender and Notification Act, that it part may of the federal Adam Walsh is constitutional has held be to sex offenders who committed sex offenses to its retroactively applied 17, (C.A.1, 2010), ; United v. DiTomasso 621 F.3d 25 enactment. See States (C.A.2, 2010), 83, 94; v. 591 F.3d United States v. United States Guzman 158-159; (C.A.3, 2010), (C.A.4, United v. Gould Shenandoah 595 F.3d States 2009), 459, 466; (C.A.5, 2009), Young v. 585 F.3d 203- 568 F.3d United States 206; (C.A.6, 2009), v. Fed.Appx. United States Samuels whose (CA.6, on other United v. Utesch overruling grounds recognized by was States 2008), 2010), 6; (C.A.8, May 596 F.3d fn. United States v. F.3d 919-920; (C.A.9, 2010), 1131; George States 625 F.3d United United 2008), 936-938; Hinckley (CA.10, States v. F.3d United States Ambert (C.A.11,2009), 561 F.3d recently As the Seventh Circuit Court of United Appeals explained 2011), (C.A.7, comprehensive

States v. Leach 639 F.3d “whether * * * registration regime only sex is is not an targeting penal open Doe, question. In Smith v. 538 U.S. 155 L.Ed.2d 164 S.Ct. the Supreme Court held that an Alaska sex registration notification posed post civil, statute no ex violation it because was rather than penal, facto * * * statute. Leach aspects has not identified registration SORNA’s provisions that distinguish this case from This is unsurprising, Smith. since we too are any meaningful Therefore, unable find join distinctions. our sister in concluding circuits SORNA not an ex law.” post facto Law, are significant There no differences between which this previously has upheld, and S.B. conforms to the notification that have been federal upheld circuit courts^ In precedent accordance with our and in agreement courts, with the circuit federal I would civil, hold S.B. 10 is constitutional because is a remedial enactment designed to protect the and safety public. welfare of the

Conclusion justification Little exists to abandon the reasoning and conclusions set court, forth in decisions of this especially of a new context statute nothing does more than change the frequency duration requirements imposed on sex offenders. reasons, For these I would affirm judgment of the of appeals

and hold that S.B. 10 does not violate Retroactivity Clause of the Ohio Constitution.

Cupp, J., concurs the foregoing opinion. Appellant. Appellee, Short, Ohio, State Short,

[Cite as 2011-Ohio-3641.] 2011.) (No. July 2011 Decided April 2006-1366 Submitted J. Lanzinger, Duane Short. A right by defendant-appellant, appeal This is murders of and Donnie Rhonda Short

jury guilty aggravated found Short sentenced to death for both offenses. Sweeney. He was Background

Factual Short trial that Duane and Rhonda were Evidence introduced at showed Middletown, Ohio, with Township, in Lemon married and lived Staton Street (born Justin, children, and Jesse Tiffany, their three Supermarket. worked as a meat cutter McGee respectively). Short church Rhonda testimony at trial that Short attended There was Miamisburg. There was at the Faith Church taught Sunday Baptist school Barian and Donnie there Brenda acquainted also that she became testimony Faith son, Baptist. taught Sunday both of whom also school Sweeney, Barian’s

Case Details

Case Name: State v. Williams

Court Name: Ohio Supreme Court

Date Published: Jul 13, 2011

Citation: 952 N.E.2d 1108

Docket Number: 2009-0088

Court Abbreviation: Ohio