State v. Williams, Ca2008-02-029 (12-1-2008)State v. Williams, Ca2008-02-029 (12-1-2008)
OPINION
{¶ 1} Defendant-appellant, George Williams, appeals the decision of the Warren County Court of Common Pleas classifying him as a Tier II Sex Offender/Child Victim Offender Registrant (“Tier II Sex Offender“) under Senate Bill 10, a law which was in effect on the date the trial court classified and sentenced appellant but which was not in effect on the date he committed the sexual offense. This appeal challenges the constitutionality of Senate Bill 10.
{¶ 2} Appellant was indicted in 2007 on one count of unlawful sexual conduct with a minor in violation of
{¶ 3} Appellant appeals, raising one assignment of error:
{¶ 4} “THE RETROACTIVE APPLICATION OF SENATE BILL 10 VIOLATES THE EX POST FACTO, DUE PROCESS, AND DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES CONSTITUTION AND THE RETROACTIVITY CLAUSE OF ARTICLE II, SECTION 28 OF THE OHIO CONSTITUTION; FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; ARTICLE I, SECTION 10 OF THE UNITED STATES CONSTITUTION; AND ARTICLE I, SECTION 10 AND ARTICLE II, SECTION 28 OF THE OHIO CONSTITUTION.”
{¶ 5} In his assignment of error, appellant argues that Senate Bill 10 violates several constitutional rights. Specifiсally, appellant asserts that the application of Senate Bill 10 (1) violates the Ex Post Facto Clause of the United States Constitution; (2) violates the Ohio Constitution‘s prohibition on retroactive laws; (3) violates the doctrine of separation of powers; (4) violates the prohibition against cruel and unusual punishment; (5) violates his due process rights; and (6) amounts to double jeopardy.
{¶ 6} At this juncture, we note that on the record before us, appellant never raised his constitutional arguments in the trial court. It is well-established that “[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which is
{¶ 7} Thus, we have discretion to address appellant‘s constitutional arguments under a plain-error analysis. Id.; State v. Desbiens, Montgomery App. No. 22489, 2008-Ohio-3375, ¶ 17. An error qualifies as plain error only if it is obvious and but for the error, the outcome of the proceeding clearly would have been otherwise. Desbiens at ¶ 17. Although appellant failed to raise his constitutional arguments below, we choose to exercise our discretion and address his claims on appeal.
{¶ 8} Before we address appellant‘s constitutional arguments, we first proceed with a brief overview of Ohio‘s sex offender registration legislation before Senate Bill 10.
{¶ 9} Ohio first enacted a sex offender registration statute in 1963. As it is now, the statute was contained within R.C. Chapter 2950. The law, however, became more complex in 1996 due in large part to New Jersey‘s 1994 passage of “Megan‘s Law” and the 1994 enactment of the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (
{¶ 10} Under former R.C. Chapter 2950, a sentencing court was required to determine
{¶ 11} In State v. Cook, 83 Ohio St.3d 404, 1998-Ohio-291, the Ohio Supreme Court addressed whether former R.C. Chapter 2950, as applied to conduct prior to the effective date of the statute, violаted the Ohio Constitution‘s prohibition on retroactive laws and the Ex Post Facto Clause of the United States Constitution. The supreme court noted that former R.C. Chapter 2950 sought to “protect the safety and general welfare of the people of this state,” which was a “paramount governmental interest.” Id. at 417. The supreme court held that because the statute was remedial rather than punitive, the registration provisions of former R.C. Chapter 2950 did not violate the Ohio Constitution‘s ban on retroactive laws. Id. at 413. The supreme court further held that in light of the statute‘s remedial nature, and because there was no clear proof that the statute was punitive in its effect, the registration and notification provisions of former R.C. Chapter 2950 did not violate the Ex Post Facto Clause of the United States Constitution. Id. at 423.
{¶ 12} Two years later, in Williams, 88 Ohio St.3d 513, the supreme court addressed whether the registration and notification provisions of former R.C. Chapter 2950 amounted to double jeopardy. The supreme court held that because former R.C. Chapter 2950 was “neither `criminal,’ nor a statute that inflicts punishment,” former R.C. Chapter 2950 did not violate the Double Jeopardy Clauses of the United States and Ohio Constitutions. Id. at 528. Subsequently, in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, the suрreme court reiterated that “the sex-offender-classification proceedings under [former] R.C. Chapter 2950 are civil in nature[.]” Id. at ¶ 32.
{¶ 13} Former Chapter 2950 was amended by Senate Bill 5, effective July 31, 2003. The amendments required that the designation “predator” and the concomitant duty to register remain for life; required sex offenders to register in three different counties (that is, county of residence, county of employment, and county of school) every 90 days (as opposed to registering only in their county of residence); and expanded the community notification requirements. In State v. Ferguson, Slip Opinion No. 2008-Ohio-4824, the Ohio Supreme Court addressed whether the Senate Bill 5 amendments, as applied to conduct prior to the effective date of the statute, violated the Ex Post Facto Clause of the United States Constitution and the Ohio Constitution‘s prohibition on retroactive laws. Once again, noting the civil, remedial nature of the statute, the supreme court held that the Senate Bill 5 amendments to former R.C. Chapter 2950 neither violated the retroactivity clause of the Ohio Constitution nor the Ex Post Facto Clause of the United States Constitution. Id. at ¶ 36, 40, and 43.
{¶ 14} On June 30, 2007, the Governor of the state of Ohio signed Senate Bill 10 into effect. Senate Bill 10 implements the federal Adam Walsh Child Protection and Safety Act which was passed by the United States Congress in 2006. Senate Bill 10 amended numerous sections of Ohio‘s Revised Code. However, for purposes of this appeal, only the
{¶ 15} Senate Bill 10 classifies each sex offender subject to registration under a new three-tiered system, thereby abolishing the prior classifications in former R.C. Chapter 2950. Designations such as “sexual predator” no longer exist, nor do the related hearings under former
{¶ 16} Now, under Senate Bill 10, an offender who commits a sex offense is found to be either a “sex offender” or a “child-victim offender.” Then, depending on the sex offense the offender committed, the offender is placed in Tier I, Tier II, or Tier III. Trial courts no longer have discretion in imposing a certain classification on offenders, and an offender‘s likelihood to reoffend is no longer considered. Rather, offenders are now classified solely on the offense for which they were convicted. State v. Clay, 177 Ohio App.3d 78, 2008-Ohio-2980, ¶ 6. Offenders, however, are automatically placed into a higher tier if (1) they have a prior conviction for a sexually-oriented or child-victim-oriented offense, or (2) they have been previously classified as sexual predators. Id. at ¶ 7.
{¶ 17} Senate Bill 10 also provides for the reclassification of all offenders who were classified prior to its enactment. In re Smith, Allen App. No. 1-07-58, 2008-Ohio-3234, ¶ 32. The reclassification affords no deference to the prior classification given by the trial court. Rather, offenders are reclassified under Senate Bill 10 solely on the offense for which they were convicted. Id.
{¶ 18} Of the three tiers, Tier I is the lowest tier and Tier III is the highest tier. Each tier has registration requirements, but they differ in terms of the duration of the duty and the frequency of the in-person address verification. The registration requirements under Senate
{¶ 19} We now turn to appellant‘s constitutional arguments. The crux of appellant‘s arguments is that by tying sex offender classification, registration, and community notification requirements solely to the crime committed by the offender, without any consideration of the offender‘s likelihood of reoffending, Senate Bill 10 has created a sex-offender registration scheme that is no longer remedial and civil in nature. Rather, sex offender registration under Senate Bill 10 is purely punitive and is in fact part of the original sentence.
{¶ 20} It is well-established that “statutes enjoy a strong presumption of constitutionality.” Cook, 83 Ohio St.3d at 409. “A regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality. That presumption of validity of such legislative enactment cannot be overcome unless it appear[s] that there is a clear conflict between the legislation in quеstion and some particular provision or provisions of the Constitution.” Id. (Internal citations omitted.)
{¶ 21} Accordingly, we begin with the strong presumption that Senate Bill 10 is constitutional.
THE RETROACTIVE CLAUSE OF THE OHIO CONSTITUTION
{¶ 22} Appellant argues that the classification, registration, and residency provisions of Senate Bill 10 violate the Ohio Constitution‘s prohibition on retroactive laws. We note that
{¶ 23}
Whether Senate Bill 10‘s classification and registration provisions apply retroactively
{¶ 24} We find that the classification and registration provisions of Senate Bill 10 were intended to apply retroactively. Under Senate Bill 10,
{¶ 25}
{¶ 26} “All of the above shows the [legislature‘s] express intention for those sections to be applicable to acts committed or facts in existence prior to the effective date of [Senate Bill 10].” Byers, 2008-Ohio-5051, ¶ 63 (emphasis added). Thus, Senate Bill 10‘s tier classification system and its registration provision were intended to apply retroactively to all offenders. “That, however, is not a determination that all of Senate Bill 10 applies retroactively.” Id. As our analysis regarding Senate Bill 10‘s residency provision shows below, the residency provision is not retroactive.
Whether Senate Bill 10 is remedial or substantive
{¶ 27} Having determined that the classification and registration provisions of Senate Bill 10 meet the threshold test for retroactive application under
{¶ 28} “A statute is `substantive’ if it impairs or takes away vested rights, affects an
{¶ 29} At the outset, we note that Senate Bill 10 is replete with references to the legislative‘s “intent to protect the safety and general welfare оf the people of this state” and to “assur[e] public protection,” in light of the legislative determination that “[s]ex offenders and child-victim offenders pose a risk of engaging in further sexually abusive behavior even after being released from imprisonment.”
{¶ 30} In Cook, the defendant attempted to challenge the 1997 version of former R.C. Chapter 2950, which changed the frequency and duration of the previous sex-offender registration requirements, and which increased the number of classifications from one to three different classifications (sexually-oriented offender, habitual sexual offender, and sexual predator). The supreme court rejected the argument that these provisions under the 1997 version of former R.C. Chapter 2950 were substantive because they imposed additional burdens with respect to a past transaction:
{¶ 31} “However, under the former provisions, habitual sex offenders were already required to register with their county sheriff. * * * Only the frequency and duration of the registration requirements have changed. Frequency of registration has increased * * *.
{¶ 32} The supreme court “conclude[d] that the registration and address verification provisions of [former] R.C. Chapter 2950 are de minimis procedural requirements that are necessary to achieve the goals of [former] R.C. Chapter 2950.” Cook at 412. In so ruling, the supreme court concurred with the reasoning of the New Jersey Supreme Court in Doe v. Poritz (1995), 142 N.J. 1, 662 A.2d 367, which held that:
{¶ 33} “The Legislature reached the irresistible conclusion that if community safety was its objective, there was no justification for apрlying these laws only to those who offend or who are convicted in the future, and not applying them to previously-convicted offenders. * * * The Legislature concluded that there was no justification for protecting only children of the future from the risk of reoffense by future offenders, and not today‘s children from the risk of reoffense by previously-convicted offenders, when the nature of those risks were identical and presently arose almost exclusively from previously-convicted offenders, their numbers now and for a fair number of years obviously vastly exceeding the number of those who, after passage of these laws, will be convicted and released and only then, for the first time, potentially subject to community notification.‘” Cook at 413, quoting Poritz, 142 N.J. at 13-14, 662 A.2d at 373.
{¶ 34} As a result, the Ohio Supreme Court held that “the registration and verification
{¶ 35} As noted earlier, Senate Bill 10 abolished the three prior classifications in former R.C. Chapter 2950 and replaced them with a new three-tiered system. The designations have changed but the sex offenders are still classified into one out of three different categories. The registration requirements for the first two tiers under Senate Bill 10 are longer in duration than their counterparts under former R.C. Chapter 2950; however, whether a sex offender was classified as a sexual predator under former R.C. Chapter 2950 or is classified as a Tier III Sex Offender under Senate Bill 10, the offender is required to register for life. The frequency of the in-person address verification for each tier under Senate Bill 10 is identical to the frequency required under former R.C. Chapter 2950 for each classification.
{¶ 36} As the Clermont County Common Pleas Court noted in Slagle v. State, 145 Ohio Misc.2d 98, 2008-Ohio-593, “as it currently stands, Cook is good law and must be followed by this court.” Id. at ¶ 40. The Ohio Supreme Court has continued to indicate the remedial nature of sex offender classification statutes. See Williams, 88 Ohio St.3d at 528; Ferguson, 2008-Ohio-4824, ¶ 29. As a result, we find that the classification and registrations provisions of Senate Bill 10 are remedial in nature and do not violate the ban on retroactive laws set forth in
EX POST FACTO
{¶ 37} Appellant argues that applying Senate Bill 10 to crimes that occurrеd before January 1, 2008, violates the Ex Post Facto Clause of the United States Constitution.
{¶ 38}
{¶ 39} To determine whether Senate Bill 10 is a civil or criminal statute for purposes of an ex post facto analysis, we apply the “intent-effects” test. Id. We must first determine whether the legislature meant Senate Bill 10 to be a civil statute and nonpunitive, or to impose punishment. A determination that the legislature intended the statute to be punitive ends the analysis and results in a finding that the statute is unconstitutional. If, however, the legislature‘s intent was to enact a regulatory scheme that is civil and nonpunitive, we must then determine whether the statutory scheme is so punitive either in purpose or effect as to negate the legislature‘s intent. Id.; Smith v. Doe (2002), 538 U.S. 84, 92, 123 S.Ct. 1140; In re G.E.S., Summit App. No. 24079, 2008-Ohio-4076, ¶ 18.
The legislature‘s intent in enacting Senate Bill 10
{¶ 40} Upon reviewing Senate Bill 10, we find that the legislature‘s intent in enacting the statute was civil, not punitive. “A court must look to the language and the purpose of the stаtute in order to determine legislative intent.” Cook at 416. Senate Bill 10 is devoid of any language indicating an intent to punish. To the contrary, and just as the supreme court found in Cook with regard to former R.C. Chapter 2950, the legislature has expressly declared that the intent of Senate Bill 10 is “to protect the safety and general welfare of the people of this state,” which is “a paramount governmental interest;” and that “the exchange or release of
{¶ 41} Appellant nevertheless argues that the legislature intended Senate Bill 10 to be punitive because (1) an offender‘s classification and registration obligations depend solely on the offense committed, rather than the offender‘s risk to the community or likelihood of reoffending; (2) Senate Bill 10 criminalizes an offender‘s failure to comply with the registration and verification requirements; and (3) the legislature placed Senatе Bill 10 within Title 29, Ohio‘s Criminal Code. We disagree.
{¶ 42} Appellant‘s first argument was rejected by two appellate courts. In State v. King, Miami App. No. 08-CA-02, 2008-Ohio-2594, the Second Appellate District stated: “[The offender‘s] attempt to divine punitive intent from the absence of any individualized risk assessment under S.B. 10 is unavailing. As noted above, the new legislation automatically places offenders into one of three tiers based solely on the offense of conviction and imposes corresponding registration requirements. In [Doe, 538 U.S. 84], the United States Supreme Court recognized that a legislature may take such a categorical approach without transforming a regulatory scheme into a punitive one.” King at ¶ 12; see, also, Desbiens, 2008-Ohio-3375.
{¶ 43} Likewise, the Seventh Appellate District stated: “However, [former] R.C. Chapter 2950‘s classification was also partially tied to the offense. * * * [I]t cannot necessarily be concluded that Senate Bill 10‘s tiers are not directly tied to the ongoing threat to the community that sex offenders pose. The types of offenses that are placed in Tier I are less severe sex offenses, Tier II are more severe, and Tier III are the most severe offenses. Also within these tiers are some factual dеtermination, such as if the offense was sexually
{¶ 44} We agree with the foregoing analyses. The legislature‘s intent in enacting Senate Bill 10 was not punitive simply because an offender‘s classification and registration obligations depend on the offense committed, rather than on the offender‘s risk to the community or likelihood of reoffending.
{¶ 45} Next, appellant argues that the legislature intended Senate Bill 10 to be punitive because the statute criminalizes an offender‘s failure to comply with the registration and verification requirements. We disagree.
{¶ 46} Failure to register was already a punishable offense before former R.C. Chapter 2950. See Cook, 83 Ohio St.3d at 420. As the Ninth Appellate District stated, “these provisions do not impact [Senate Bill 10‘s] remedial nature. The pre-[Senate Bill 10] statutory scheme also criminalized an offender‘s failure to comply with the registration and verification requirements. See former
{¶ 47} We therefore find that the legislature‘s intent in enacting Senate Bill 10 was not
{¶ 48} Finally, appellant argues that because the legislature placed Senate Bill 10 in Ohio‘s Criminal Code, it intended Senate Bill 10 to be punitive. This argument is not persuasive. “The location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” Doe, 538 U.S. at 94. As the Seventh Appellate District aptly stated,” [former] R.C. Chapter 2950 was within the criminal code, yet the Ohio Supreme Court determined that it was civil in nature. While [Senate Bill 10] is in the criminal code, that placement is not dispositive of the issue, especially since the legislature specifically indicated the intent to be civil.” Byers, 2008-Ohio-5051, ¶ 27; see, also, King, 2008-Ohio-2594, ¶ 12; In re G.E.S., 2008-Ohio-4076, ¶ 21-22.
{¶ 49} We therefore find that the legislature‘s intent in enacting Senate Bill 10 was remedial, not punitive.
Whether Senate Bill 10 has a punitive effect
{¶ 50} We now move to the “effects” prong of the test and determine whether Senate Bill 10 has a punitive effect such that its effect negates the legislative intent. “[O]nly the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Doe, 538 U.S. at 92; Cook, 83 Ohio St.3d at 418. The United States Supreme Court has “fashioned useful guideposts for determining whether a statute is punitive.” Cook, citing Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 83 S.Ct. 554. The guideposts are as follows:
{¶ 51} “[1] whether the sanction involves an affirmative disability or restraint; [2] whether it has historically been regarded as a punishment; [3] whether it comes into play only on a finding of scienter; [4] whether its operation will promote the traditional aims of punishment — retribution and deterrence; [5] whether the behavior to which it applies is
{¶ 52} On appeal, although he cites five of the foregoing guideposts, appellant only addresses three of the guideposts. Specifically, appellant argues that Senate Bill 10 imposes burdens that operate as affirmative disabilities and restraints; is analogous to colonial punishments; and furthers the traditional aims of punishment. We find that appellant has not come forward with the “clearest proof” that the effect of Senate Bill 10 is so punitive that it overcomes the legislature‘s non-punitive intent.
{¶ 53} Appellant first asserts that Senate Bill 10 imposes a new affirmative disability or restraint. In Cook, the supreme court found that former R.C. Chapter 2950 imposed no new affirmative disability or restraint: “The act of registering does not restrain the offender in any way. Registering may cause some inconvenience for offenders. However, the inconvenience is comparable to renewing a driver‘s license. Thus we find that the inconveniencе of registration is a de minimis administrative requirement.
{¶ 54} “[Former] R.C. Chapter 2950 also requires that information be disseminated to certain persons. Admittedly, that information could have a detrimental effect on offenders, causing them to be ostracized and subjecting them to embarrassment or harassment. However, `whether a sanction constitutes punishment is not determined from the defendant‘s perspective, as even remedial sanctions carry the “sting of punishment.“’ In addition, the burden of dissemination is not imposed on the defendant, but rather on law enforcement.” Cook, 83 Ohio St.3d at 418 (internal citations omitted).
{¶ 55} In King, the Second Appellate District held that: “In Cook, * * * the court reasoned that the act of registering as a sex offender does not impose any restraint. This
{¶ 56} The Ninth Appellate District likewise rejected appellant‘s argument: “The [United States] Supreme Court reasoned [in Doe that while SORA required offenders to notify authorities if they changed address, place of employment, or physical appearance, the statute did not require offenders `to seek permission to do so.’ * * * Offenders were free to make these changes so long as they forewarned authorities. While the Supreme Court did not have to consider the matter of in-person registration, as SORA contained no such requirement, the Ohio Supreme Court upheld the [former R.C. Chapter 2950] statutory scheme‘s in-person registration requirement in Cook.
{¶ 57} “As with the statutory schemes in Doe and Cook, [Senate Bill 10] does not impose any constitutional disabilities or restraints[.] * * * [Senate Bill 10] does not restrain [sex offenders] or otherwise forbid them from engaging in activities. * * * [F]reedom from humiliation and other disagreeable consequences is not a constitutional right. Such humiliation or ostracism may flow naturally from an underlying conviction (including convictions for non-sexually oriented offenses) regardless of [Senate Bill 10‘s] applicability. We do not ignore the potential impact of [Senate Bill 10], but `whether a sanction constitutes punishment is not determined from the defendant‘s perspective, as even remedial sanctions carry the sting of
{¶ 58} In Byers, the Seventh Appellate District acknowledged that “sex offender registration under Senate Bill 10 * * * requires more than the version discussed in Cook” as Senate Bill 10 requires sex offenders to register in several counties and to provide a substantial amount of personal information. Byers, 2008-Ohio-5051, ¶ 31-32. “As can be seen, these requirements are more involved than the registration requirements in the version discussed in Cook. However, the Ohio Supreme Court has continually stated that sex offender classifications are civil in nature. Most recently, in [Wilson], the Court restated the decision in Cook that the sex offenders classification laws are remedial, not punitive. The registration statute that was in effect in Wilson, is not too different from Senate Bill 10‘s version. * * * We must follow the Supreme Court‘s decision in Cook and the majority decision in Wilson that offender classification is civil in nature and the registration requirement is still de minimis; Cook and Wilson are still controlling law.” Id. at ¶ 37. See, also, Ferguson, 2008-Ohio-4824 (finding that amendments to former R.C. Chapter 2950 expanding registration and notification requirements did not violate the Ex Post Facto Clause; reaffirming that sex offendеrs classification laws are remedial; and stating that the dissent in Wilson had no precedential value).
{¶ 59} With regard to the issue of dissemination of information on the offender to the public, the Seventh Appellate District held that: “It is noted that the dissemination requirements under the Senate Bill 10 version of R.C. Chapter 2950 falls upon law enforcement, like the prior version, and puts none of this duty on the offender. Consequently, for the same reasoning as in Cook, we find that R.C. Chapter 2950, as changed by Senate Bill 10, does not impose a new affirmative disability or restraint.” Byers at ¶ 38.
{¶ 60} We agree with the foregoing analyses and find them to be persuasive. We therefore find that Senate Bill 10 does not imposes a new affirmative disability or restraint.
{¶ 61} Next, appellant asserts that Senate Bill 10 is analogous to “colonial punishments of `public shaming, humiliation, and banishment,‘” and that the wide dissemination of sex offenders’ personal information “resemble shaming punishments intended to inflict public disgrace.” We disagree.
{¶ 62} We initially note that in Cook, the supreme court recognized that registration has long been a valid regulatory technique with a remedial purpose; Ohio has had a registration requirement since 1963; and public dissemination of registered information about a sex offender hаs not been regarded as punishment when done in furtherance of a legitimate governmental interest. Cook, 83 Ohio St.3d at 418-419.
{¶ 63} In Doe, the United States Supreme Court addressed, and rejected, a similar argument:
{¶ 64} “Any initial resemblance to early punishment is, however, misleading. * * * Even punishments that lacked the corporal component, such as public shaming, humiliation, and banishment, involved more than the dissemination of information. They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community. By contrast, the stigma of Alaska‘s Megan‘s Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. * * * The publicity may cause adverse consequences for the convicted defendant, running from mild embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.
{¶ 65} “The faсt that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender
{¶ 66} In light of the foregoing, we find that Senate Bill 10 is not analogous to colonial punishments; nor does the wide dissemination of sex offenders’ personal information resemble shaming punishments. King, 2008-Ohio-2594, ¶ 17-20; In re G.E.S., 2008-Ohio-4076, ¶ 31; see, also, Byers, 2008-Ohio-5051, ¶ 49-54 (finding that the registration and notification provisions of Senate Bill 10 were non-punitive and reasonably necessary for the intended purpose of protecting the public, even though Senate Bill 10 requires more infоrmation to be given by the offender when registering than under former R.C. Chapter 2950, and even though information about a sex offender is more widely and readily available than at the time Cook was decided).
{¶ 67} Finally, appellant asserts that Senate Bill 10 furthers the traditional aims of punishment, to wit: retribution and deterrence.
{¶ 68} “Retribution is vengeance for its own sake. It does not seek to affect future conduct or solve any problem except realizing justice. Deterrent measures serve as a threat of negative repercussions to discourage people from engaging in certain behavior. Remedial measures, on the other hand, seek to solve a problem, for instance by removing the likely perpetrators of future corruption.” Cook, 83 Ohio St.3d at 420, quoting Artway v. New Jersey Atty. Gen. (C.A.3, 1996), 81 F.3d 1235, 1255.
{¶ 69} Relying on these definitions, the supreme court in Cook found that the
{¶ 70} We find that the same reasoning applies to Senate Bill 10. Byers at ¶ 41. “Our review of [Senate Bill 10] convinces us that Cook applies to the vast majority of its provisions, which are targeted to maximize the flow of information to the public. [Senate Bill 10] attempts to `solve a problem’ by keeping the public well informed of possible sources of danger. We cannot say that any of the additions to the [former R.C. Chapter 2950] statutory scheme, which are comprised mainly of additional demands from offenders, transform the scheme into one that has either a noticeable retributive or deterrent effect.” In re G.E.S. at ¶ 35 (internal citations omitted).
{¶ 71} Further, “[b]y tying an offender‘s classification to the offense committed rather than to an individual assessment of dangerousness, the [legislature] merely adopted an alternative approach to the regulation and categorization of sex offenders. In [Doe], the United States Supreme Court expressly rejected an argument that Alaska‘s sex-offender registration obligations were retributive because they were based on the crime committed rather than the particular risk an offender posed. * * * Similarly, the [Doe] court rejected the notion that dеterrence resulting from Alaska‘s statute was sufficient to establish a punitive effect.” King at ¶ 22.
{¶ 72} We find that Senate Bill 10 does not promote the traditional aims of punishment-retribution and deterrence.
{¶ 73} We note that the remaining Kennedy guideposts, which were not argued by
{¶ 74} In light of all of the foregoing, we reject appellant‘s argument that Senate Bill 10 is so punitive in effect that it negates the legislature‘s non-punitive intent. Appellant cannot show, much less by the clearest proof, that the effects of Senate Bill 10 negate the legislature‘s intent to establish a civil regulatory scheme. The guideposts set forth in Kennedy and argued by appellant indicate that Senate Bill 10 serves the solely remedial purpose of protecting the public. While the notification requirements may be a detriment to registered sex offenders, “the sting of public censure does not convert a remedial statute into a punitive one.” Cook, 83 Ohio St.3d. at 423.
{¶ 75} We therefore find that Senate Bill 10 is remedial, and not punitive, and that the retroactive application of its classification, registration, and notification provisions do not violatе the Ex Post Facto Clause of the United States Constitution.
SENATE BILL 10‘S RESIDENCY PROVISION
{¶ 76} Appellant argues that Senate Bill 10‘s residency provision violates the Ohio Constitution‘s ban on retroactive laws, the Ex Post Facto Clause of the United States Constitution, and his due process rights. The residency provision prohibits any “person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense [from] establish[ing] a residence or occupy[ing] residential premises within [1,000] feet of any school premises or preschool or child day-care center premises.” The crux of appellant‘s arguments is that (1) because the legislature has mandated that Senate Bill 10 be applied retroactively, the residency provision is unconstitutionally retroactive, and (2) the residency provision operates as a direct restraint on a person‘s liberty and infringes a person‘s right to live and work where they wish.
{¶ 77} Appellant challenges the fact that under Senate Bill 10, he “is categorically
{¶ 78} Assuming, arguendo, that appellant currently resides within 1,000 feet of a school, preschool, or day-care center and that he was residing there before July 1, 2007 (the effective date for Senate Bill 10‘s residency provision), we find that the Ohio Supreme Court‘s decision in Hyle, 117 Ohio St.3d 165, applies. Appellant committed his offense before July 1, 2007.
{¶ 79} In Hyle, the supreme court was asked to determine whether the residency provision in former R.C. Chapter 2950, which prohibited certain sexually-oriented offenders from living within 1,000 feet of a school, could be applied to an offender who had bought his home and committed his offense before the effective date of the statute. The provision at the time provided that “[n]o person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to either a sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within [1,000] feet of any school premises.”
{¶ 80} The supreme court held that the residency provision in former R.C. Chapter 2950 did not apply retroactively to an offender who had bought his home or resided in a home and had committed sex offenses prior to the statute‘s effective date:
{¶ 81} “On review of the text of [the former residency provision], we find that neither the description of convicted sex offenders nor the description of prohibited acts includes a clear declaration of retroactivity. Although we acknowledge that the language of [the
{¶ 82} “* * *
{¶ 83} “Our conclusion that [thе residency provision] was not expressly made retrospective precludes us from addressing the constitutional prohibition against retroactivity. * * * We hold that because [the provision] was not expressly made retroactive, it does not apply to an offender who bought his home and committed his offense before the effective date of the statute.” Hyle at ¶ 13, 24.
{¶ 84} When comparing the language of the residency provision in Senate Bill 10 and its counterpart in former R.C. Chapter 2950, the only differences between the two provisions are that Senate Bill 10‘s residency provision prohibits all sexually-oriented offenders, and not certain sexually-oriented offenders, from living within 1,000 feet of a preschool or day-care center, in addition to a school. Those differences are minor and do not impact the analysis in Hyle. The reasoning in Hyle therefore applies. Accordingly, we find that Senate Bill 10‘s residency provision does not apply to an offender who bought his home or resided in a home and committed his offense before July 1, 2007, the effective date of Senate Bill 10‘s residency provision. See Byers, 2008-Ohio-5051, ¶ 98-99.
{¶ 85} Next, appellant argues that the residency provision violates the Ex Post Facto Clause of the United States Constitution because it imposes an affirmative disability or restraint and resembles colonial punishments. We disagree.
{¶ 86} In King, the Second Appellate District noted that “we fail to see a constitutionally meaningful distinction between S.B. 10 and the version of R.C. Chapter 2950 in effect when [the supreme court‘s decision in Wilson] was decided. Likewise, while S.B. 10
{¶ 87} In Coston v. Petro (S.D.Ohio 2005), 398 F.Supp.2d 878, the district court held that the residency provision in former R.C. Chapter 2950 was neither a criminal provision nor did it have a punitive effect. As noted earlier, Senate Bill 10 only made a slight change to the residency provision in former R.C. Chapter 2950 by adding day-cares and preschools to the residency prohibition; no drastic change was made. The reasoning in Coston was as follows:
{¶ 88} “[The residency provision] does not, however, impose punishment and accordingly is not a criminal statute. [The provision] on its face imposes no criminal sanctions * * * and the expressed intent of the sex offender registration statute is to protect the safety and general welfare of the public. * * *
{¶ 89} “* * *
{¶ 90} “[A]lthough [the provision] prohibits sex offenders from living within the designated areas, this statute is unlike the traditional punishment of banishment because sex offenders are not expelled from the community or even prohibited from accessing these areas for employment or conducting commercial transactions. * * * [The provision] does impose an affirmative restraint or disability in that registered sex offenders are precluded from living within designated areas of the state. Nevertheless, [the provision] imposes no physical restraint on sex offenders and in fact is less restrictive than the involuntary commitment provisions for mentally ill sex offenders held to be nonpunitive in Kansas v. Hendricks, 521 U.S. 346, 363-65, 117 S.Ct. 2072 (1997). [S]ex offenders are free to move about within the zone, but they cannot establish a permanent residence there. Therefore, the Court cannot
{¶ 91} Finally, appellant argues that the residency provision violates his due process rights. Assuming appellant‘s argument is based on an assumption that the provision will eventually affect him, we decline to address appellant‘s argument. As noted earlier, appellant has not alleged he was forced to move from an area due to his proximity to a school, preschool, or day-care center, or that he has any intention of moving to a residence within 1,000 feet of a school, preschool, or day-care center. Appellant has failed to show he has suffered any actual deprivation of his rights by operation of Senate Bill 10‘s residency provision.
{¶ 92} It follows that appellant lacks standing to raise constitutional challenges to Senate Bill 10‘s residency provision: “It has been held that a defendant lacks standing to challenge the constitutionality of [the residency provision] where the record fails to show whether the defendant has suffered an actual deprivation of his property rights by operation of
{¶ 93} “The 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 unconstitutionally applied and who has not been injured by its alleged unconstitutional provision.” State v. Bruce, Cuyahoga App. No. 89641, 2008-Ohio-926, ¶ 12. “[Defendant] has failed to provide any evidence to demonstrate an injury in fact or an actual deprivation of his property rights or his right to privacy. Neither can he prosecute a facial challenge in order to assert the rights of third parties not before the court.” Id., citing Coston, 398 F.Supp.2d at 884 (both decisions addressing a constitutional challenge to the residency provision in former R.C. Chapter 2950).
{¶ 94} We therefore find that Senate Bill 10‘s residency provision does not apply to a sex offender who bought his home or resided in a home and committed his offense before July 1, 2007, the effective date of the residency provision; the provision does not violate the Ex Post Facto Clause of the United States Constitution; and appellant lacks standing to challenge the constitutionality of Senate Bill 10‘s residency provision on due process grounds.
SEPARATION OF POWERS
{¶ 95} Appellant argues that Senate Bill 10 violates the separation-of-powers doctrine “inherent in Ohio‘s constitutional framework by unconstitutionally limiting the powers of the judicial branch of the government.” Specifically, “Senate Bill 10 divests the judiciary branch of its power to sentence a defendant [b]y automatically directing a trial court to place an offender in a specific tier based on the crime with which a defendant is convicted[.]”
{¶ 96} The Ohio Constitution vests the legislative power of the state in the General Assembly, the executive power in the Governor, and the judicial power in the courts. “A
{¶ 97} Senate Bill 10, however, does not violate the doctrine of separation of powers.
{¶ 98} As the Third Appellate District stated in In re Smith, 2008-Ohio-3234:
{¶ 99} “However, we note that the classification of sex offenders has always been a legislative mandate, not an inherent power of the courts. Without the legislature‘s creation of sex offender classifications, no such classification would be warranted. Therefore, * * * we cannot find that sex offender classification is anything other than a creation of the legislature, and therefore, the power to classify is properly expanded or limited by the legislature.” Id. at ¶ 39 (internal citation omitted).
{¶ 100} Or, as the Clermont County Common Pleas Court stated in Slagle, 2008-Ohio-593:
{¶ 101} “[The legislature] has not abrogated final judicial decisions without amending the underlying applicable law. Instead, the [legislature] 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
{¶ 102} In light of the foregoing, we find that Senate Bill 10 does not violate the separation-of-powers doctrine.
CRUEL AND UNUSUAL PUNISHMENT
{¶ 103} As a Tier II Sex Offender, appellant is required to register for 25 years. Appellant argues that the 25-year registration period is excessive and violates the prohibition against cruel and unusual punishment. We disagree.
{¶ 104} The
{¶ 105} Likewise, the fact that the registration period is longer under Senate Bill 10 than it was under former R.C. Chapter 2950 “does not impact the analysis. As long as R.C. Chapter 2950 is viewed as civil, and not criminal, remedial and not punitive, then the period of registration cannot be viewed as punishment. Accordingly, it logically follows that it does not constitute cruel and unusual punishment since the punishment element is lacking.” Byers at ¶ 77.
{¶ 106} We therefore find that Senate Bill 10 does not violate the prohibition against
DOUBLE JEOPARDY
{¶ 107} Appellant argues that Senate Bill 10 violates the Double Jeopardy Clause contained in the
{¶ 108} The Double Jeopardy Clause of the
{¶ 109} As noted earlier, the supreme court in Williams found no merit with the argument that former R.C. Chapter 2950 violated the Double Jeopardy Clause. The supreme court explained that since former R.C. Chapter 2950 was remedial and not punitive, it could not violate the Double Jeopardy Clause:
{¶ 110} “This court, in Cook, addressed whether [former] R.C. Chapter 2950 is a `criminal’ statute, and whether the registration and notification provisions involved `punishment.’ Because Cook held that [former] R.C. Chapter 2950 is neither `criminal,’ nor a statute that inflicts punishment, [former] R.C. Chapter 2950 does not violate the Double
{¶ 111} Since we found earlier in this decision that Senate Bill 10 is a civil, remedial statute, and not a criminal, punitive statute, the above analysis in Williams applies. We therefore find that Senate Bill 10 does not violate the Double Jeopardy Clauses of the United States and Ohio Constitution. See In re Smith, 2008-Ohio-3234, ¶ 36, 38; Byers, 2008-Ohio-5051, ¶ 103; and Slagle, 2008-Ohio-593, ¶ 54.
CONCLUSION
{¶ 112} In light of all of the foregoing, we find that the classification and registration provisions of Senate Bill 10 do not violate the Ohio Constitution‘s ban on retroactive laws, nor do they violate the Ex Post Facto Clause of the United States Constitution. Senate Bill 10 does not violаte the doctrine of separation of powers; does not violate the prohibition against cruel and unusual punishment; and does not violate the Double Jeopardy Clauses of the United States and Ohio Constitutions. Further, based upon the supreme court‘s decision in Hyle, 117 Ohio St.3d 165, Senate Bill 10‘s residency provision does not apply to a sex offender who bought his home or resided in a home and committed his offense before July 1, 2007, the effective date of the residency provision. The residency provision also does not violate the Ex Post Facto Clause of the United States Constitution. Finally, appellant lacks standing to challenge the constitutionality of the residency provision on due process grounds.
{¶ 113} The trial court, therefore, did not err by classifying appellant under Senate Bill 10. Appellant‘s assignment of error is overruled.
{¶ 114} Judgment affirmed.
BRESSLER, P.J., and POWELL, J., concur.