State v. Conley , 2016 Ohio 5310 ( 2016 )

[Cite as State v. Conley, 2016-Ohio-5310.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27869
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PATRICK CONLEY STOW MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2014CRB03864
DECISION AND JOURNAL ENTRY
Dated: August 10, 2016
SCHAFER, Judge.
{¶1} Defendant-Appellant, Patrick Conley, appeals the judgment of the Stow
Municipal Court convicting him of voyeurism, classifying him as a Tier I sex offender, and
ordering him to comply with the various registration duties applicable to that classification. For
the reasons that follow, we affirm.
I.
{¶2} Conley was charged with one count of voyeurism in violation of R.C. 2907.08(A),
a third-degree misdemeanor. This charge arose from Conley secretly recording people who used
the unisex bathroom at his place of work. During the pendency of the case, Conley requested
that the Adam Walsh Act, R.C. Chapter 2950 (the “Act”), be declared unconstitutional as it
applies to him. The trial court rejected Conley’s constitutionality arguments and he entered a no-
contest plea. The trial court accepted his plea and entered a finding of guilt. It subsequently
imposed a 30-day jail term with 15 days suspended and 15 days to be served on house arrest as
2
well as six months of community control.1 The trial court also classified Conley as a Tier I sex
offender, meaning that he has to register once a year for the next 15 years.
{¶3} Conley filed this timely appeal, which presents three assignments of error for our
review.
II.
Assignment of Error I
The Adam Walsh Act, as applied to Patrick Conley, violates the Eighth
Amendment prohibition against cruel and unusual punishment and
constitutes a Bill of Attainder.
{¶4} The language of Conley’s first assignment of error suggests that he challenges his
Tier I sex offender classification both as an unconstitutional Bill of Attainder and as cruel and
unusual punishment in violation of the Eighth Amendment to the United States Constitution.
However, Conley does not develop his Bill of Attainder argument in the body of his brief, so we
decline to fashion one on his behalf and address it. See App.R. 16(A)(7). Consequently, we
limit our discussion to Conley’s cruel and unusual punishment argument and we must reject it.
A. Presumption of Constitutionality and As-Applied Challenges
{¶5} The statutes enacted by the General Assembly are entitled to a “strong
presumption of constitutionality.” State v. Romage, 138 Ohio St. 3d 390, 2014-Ohio-783, ¶ 7.
As a result, “if at all possible, statutes must be construed in conformity with the Ohio and United
States Constitutions.” State v. Collier, 62 Ohio St. 3d 267, 269 (1991). In line with the
presumption of constitutionality, a court is only empowered to declare a statute unconstitutional
if it “‘appear[s] beyond a reasonable doubt that the legislation and constitutional provisions are
clearly incompatible.’” State v. Cook, 83 Ohio St. 3d 404, 409 (1998), quoting State ex rel.
1
The trial court stayed Conley’s sentence, pending the resolution of this appeal.
3
Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus. When
considering whether a statute passes constitutional muster, we are mindful that the General
Assembly is “the ultimate arbiter of public policy,” State ex rel. Cincinnati Enquirer, Div. of
Gannett Satellite Information Network v. Dupuis, 98 Ohio St. 3d 126, 2002-Ohio-7041, ¶ 21, and
that we have “‘nothing to do with the policy or wisdom of a statute[, which] is the exclusive
concern of the legislative branch[,]’” State ex rel. Ohio Academy of Trial Lawyers v. Sheward,
86 Ohio St. 3d 451, 457 (1999), quoting State ex rel. Bishop v. Mt. Orab School Dist. Bd. of Edn.,
139 Ohio St. 427, 438 (1942).
{¶6} “A statute may be challenged as unconstitutional on the basis that it is invalid on
its face or as applied to a particular set of facts.” State v. Lowe, 112 Ohio St. 3d 507, 2007-Ohio-
606, ¶ 17. Since Conley has brought an as applied challenge in this matter, he is “‘contend[ing]
that application of the statute in the particular context in which he has acted * * * [is]
unconstitutional.’” Id., quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506 U.S.
1011, 1011 (1992) (Scalia, J., dissenting). Such a “challenge focuses on the particular
application of the statute.” State v. Carrick, 131 Ohio St. 3d 340, 2012-Ohio-608, ¶ 16.
B. The Eighth Amendment
{¶7} Preliminarily, we must address whether Conley’s registration requirements are
subject to Eighth Amendment scrutiny. A sanction is only subject to such scrutiny if it is
punitive, as opposed to remedial. See Austin v. United States, 509 U.S. 602, 609 (1993) (“The
purpose of the Eighth Amendment * * * was to limit the government’s power to punish. The
Cruel and Unusual Punishments Clause is self-evidently concerned with punishment.”). The
State, relying on dicta in United States v. Kebodeaux, 133 S. Ct. 2496 (2013), about the civil
nature of the federal sex offender registry, argues that the Act’s registration requirements are
4
remedial and not subject to Eighth Amendment scrutiny. While many courts have adopted this
view of sex offender registration requirements, see State v. Blankenship, Slip Opinion No. 2015-
Ohio-4624, ¶ 42 (O’Donnell and Kennedy, JJ., concurring in judgment only) (noting that “every
federal circuit court to consider the issue has recognized that the federal sex offender registration
scheme which Ohio adopted does not impose additional criminal punishment on sex offenders”),
we are bound to apply the Ohio Supreme Court’s determination that the Act’s registration
requirements are punitive, see State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, ¶ 16
(“Following the enactment of [the Act], all doubt has been removed. R.C. Chapter 2950 is
punitive.”); see also State v. Dickens, 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25
(“An appellate court has no authority to overrule decisions of the Ohio Supreme Court but is
bound to follow them.”). It is especially clear that we are bound to view the Act’s registration
requirements as punitive based on the Court’s recent reaffirmation of that principle in
Blankenship, where a plurality of the Court stated as follows: “We have established that the
enhanced sex-offender reporting and notification requirements enacted by S.B. 10 are punitive in
nature, and violate the Eight Amendment when applied to certain juveniles.” Blankenship at ¶
33 (plurality opinion).
{¶8} Having determined that Conley’s Eighth Amendment claim is cognizable, we turn
to the controlling standard for such claims.2 The Eighth Amendment to the United States
Constitution states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor
2
Although the Ohio Constitution contains a prohibition of cruel and unusual punishment
in Article I, Section 9 that “provides unique protection for Ohioans,” Blankenship at ¶ 31, Conley
has not raised a claim based on the Ohio Constitution’s prohibition. Accordingly, we limit our
discussion to the protection provided by the United States Constitution.
5
cruel and unusual punishments inflicted.” This prohibition applies against the States via the
Fourth Amendment. State v. Hairston, 118 Ohio St. 3d 1073, 2008-Ohio-2338, ¶ 12, citing
Robinson v. California, 370 U.S. 660 (1962). “[T]he bulk of Eighth Amendment jurisprudence
concerns not whether a particular punishment constitutes torture, but whether it is
disproportionate to the crime. The central precept is that ‘punishment for crime should be
graduated and proportioned to [the] offense.’” Blankenship at ¶ 17, quoting Weems v. United
States, 217 U.S. 349, 367 (1910). The Supreme Court of Ohio has “recognized that cases
involving cruel and unusual punishments are rare, ‘limited to those involving sanctions which
under the circumstances would be considered shocking to any reasonable person.’” Id. at ¶ 32,
quoting McDougle v. Maxwell, 1 Ohio St. 2d 68, 70 (1964); see also State v. Chaffin, 30 Ohio
St.2d 13 (1972), paragraph three of the syllabus (“A punishment does not violate the
constitutional prohibition against cruel and unusual punishments, if it not be so greatly
disproportionate to the offense as to shock the sense of justice of the community.”).
{¶9} When considering Conley’s Eighth Amendment claim, we must engage in a two-
step analysis:
The Court first considers objective indicia of society’s standards, as expressed in
legislative enactments and state practice to determine whether there is a national
consensus against the sentencing practice at issue. Next, guided by the standards
elaborated by controlling precedents and by the Court’s own understanding and
interpretation of the Eight Amendment’s text, history, meaning, and purpose, the
Court must determine in the exercise of its own independent judgment whether
the punishment in question violates the Constitution.
(Internal quotations omitted.) Graham v. Florida, 560 U.S. 48, 61 (2010). Conley has not
questioned the existence of a national consensus regarding sex offender registration
requirements, which the Ohio Supreme Court has previously recognized. See State v. Cook, 83
Ohio St. 3d 404, 406 (1998) (noting that all 50 states have a sex offender registration law and that
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Ohio has had one in place since 1963). As a result, our analysis focuses on the second step of the
Graham test. “With regard to the second step, a review undertaken in our own independent
judgment, there are three considerations: (1) the culpability of the offender in light of his crime
and characteristics; (2) the severity of the punishment in question; and (3) the penological
justification.” Blankenship at ¶ 22, citing Graham at 67.
C. Conley’s Tier I Classification Is Not Cruel and Unusual Punishment
{¶10} To guide our consideration of these items, the State points us to Blankenship,
where the Supreme Court of Ohio addressed whether it was cruel and unusual punishment to
require that a defendant convicted of unlawful sexual contact with a minor, a fourth-degree
felony, register as a Tier II sex offender for a period of 25 years. A majority of the Court
concluded that the defendant’s Tier II sex offender classification was not cruel and unusual
punishment, but no reasoning carried the day with a plurality of the justices applying the test
outlined in Graham and two justices concluding that sex offender registration requirements are
not subject to Eighth Amendment scrutiny. In applying the Graham test, the plurality explained
that the defendant, a 21-year-old, was “more culpable and more deserving of punishment” for his
sexual relations with a 15-year-old, where he was aware of her age and continued to contact her
in violation of a court order. Blankenship, 2015-Ohio-4624, at ¶ 24. It also concluded that his
jail term of 12 days and 25-year registration period were not severe punishments. Id. at ¶ 25-27.
On this point, the plurality noted that “[o]ur research reveals no case in which similar registration
and verification requirements have been held to be cruel and unusual punishment.” Id. at ¶ 27.
And, finally, the plurality stated that “the penological grounds for imposing [sex offender
registration requirements] are still accepted in many quarters and are justified in part upon the
perceived high rate of recidivism and resistance to treatment among sex offenders.” Id. at ¶ 30.
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{¶11} Although Blankenship’s holding is limited to the registration requirements for
Tier II sex offenders, see id. at ¶ 38, we believe that the plurality’s reasoning is illuminative to
our resolution of Conley’s Eighth Amendment claim against the registration requirements for
Tier I sex offenders.3 And, applying Blankenship’s reasoning here, we likewise conclude that
Conley has failed to show that his Tier I sex offender registration requirements constitute cruel
and unusual punishment.
{¶12} Conley was convicted of voyeurism after setting up an electronic device in the
bathroom at his place of work for the purpose of recording a 20-year-old co-worker while she
used the toilet. The victim, who had known Conley since she was a young child, told the trial
court that this event harmed her emotionally and that she believed Conley deserved the
maximum punishment that he could receive. From this record, we conclude, like the Court in
Blankenship, that Conley is “more culpable and more deserving of punishment.” Id. at ¶ 24.
{¶13} As to the severity of Conley’s punishment, we note that his 15-year registration
period is much shorter than the 25-year registration period imposed in Blankenship. Id. at ¶ 4.
Nevertheless, the Court determined that the 25-year registration requirement implicated in that
matter “do[es] not meet the high burden of being so extreme as to be grossly disproportionate to
the crime or shocking to a reasonable person.” Id. at ¶ 38. Since the Court in Blankenship
determined that a registration period that is nearly twice as long as the one imposed here is
3
There is limited case law on the interplay between the Eighth Amendment and sex
offender registration requirements from the federal courts or other state courts because many
jurisdictions have concluded that such requirements are not subject to Eighth Amendment
scrutiny. E.g. People in Interest of J.O., __ P.3d __, 2015-COA-119, ¶ 24 (Colo.App.) (“Most
jurisdictions to have addressed this issue continue to hold that sex offender registration for a
juvenile is not punitive.”); In re Alva, 33 Cal. 4th 254, 262 (2004) (“[W]e conclude that
California’s law requiring the mere registration of convicted sex offenders is not a punitive
measure subject to either state of federal proscriptions against punishment that is ‘cruel’ and/or
‘unusual.’”).
8
permissible under the Eighth Amendment, we can discern no reason to conclude that Conley’s
15-year registration period is so severe as to reach the level of unconstitutionality. See Rummel
v. Estelle, 445 U.S. 263, 272 (1980) (noting that “[o]utside the context of capital punishment,
successful challenges to the proportionality of particular sentences have been exceedingly
rare.”); McDougle v. Maxwell, 1 Ohio St. 2d 68, 69 (1964) (“As a general rule, a sentence that
falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.”).
{¶14} And, finally, the Court’s discussion in Blankenship regarding the Act’s
registration requirements and their penological aim applies with equal force here. While there
may be scholarly debate regarding the propriety of sex offender registration requirements, see
Blankenship, 2015-Ohio-4624, at ¶ 29 (collecting scholarly articles criticizing sex offender
registration schemes), it is still true that those requirements are widely accepted both in Ohio and
across the country, id. at ¶ 63 (O’Donnell and Kennedy, JJ., concurring in judgment only)
(noting that the Act was adopted as part of “a national, uniform system of sex offender
registration and notification”). Consequently, a review of the record reveals that Conley was
culpable for his actions, that the trial court gave him a non-severe jail term and registration
period, and that the registration period satisfied the penological aim of reducing recidivism
among sex offenders. In light of this, we conclude that Conley has failed to carry his burden of
showing that his Tier I sex offender classification constitutes cruel and unusual punishment.
{¶15} Accordingly, we overrule Conley’s first assignment of error.
Assignment of Error II
The Adam Walsh Act, as applied to Patrick Conley, violates the Due Process
Clause of the United States Constitution and Section 16, Article I of the Ohio
Constitution.
9
{¶16} In his second assignment of error, Conley contends that the Act, as it applies to
him, violates the due process clauses contained in the United States Constitution and Ohio
Constitution. We disagree.
A. Due Process
{¶17} The Fourteenth Amendment to the United States Constitution prohibits depriving
“any person of life, liberty, or property, without due process of law[.]” Article I, Section 16 of
the Ohio Constitution similarly provides that “every person, for an injury done him in his land,
goods, person, or reputation, shall have remedy by due process of law[.]” Despite these
provisions’ different wordings, the Ohio Supreme Court has determined that they afford
“equivalent” protections. Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544 (1941).
The Due Process Clause has both a procedural and a substantive component. See Washington v.
Glucksberg, 521 U.S. 702, 719 (“The Due Process Clause guarantees more than fair process, and
the ‘liberty’ it protects includes more than the absence of physical restraint.”). Conley has raised
due process challenges under both of these components and we consider each in turn.
B. The Act Does Not Violate Procedural Due Process
{¶18} The procedural component of due process is “flexible and varies depending on the
importance attached to the interest and the particular circumstances under which the deprivation
may occur.” State v. Hochhausler, 76 Ohio St. 3d 455, 459 (1996); see also Cafeteria Workers v.
McElroy, 367 U.S. 886, 895 (1961) (“[U]nlike some legal rules, * * * [due process] is not a
technical conception with a fixed content unrelated to time, place, and circumstances.”). Despite
the flexibility of the concept, it does “demand[] that the right to notice and an opportunity to be
heard must be granted at a meaningful time and in a meaningful manner where the state seeks to
infringe a protected liberty or property interest.” Hochhausler at 459. “To trigger protections
10
under these clauses, a sexual offender must show that he was deprived of a protected liberty or
property interest as a result of the registration requirement.” State v. Hayden, 96 Ohio St. 3d 211,
2002-Ohio-4169, ¶ 6.
{¶19} Conley’s procedural due process argument focuses on two items. First, he argues
that he was denied procedural due process because the trial court did not hold a hearing
regarding his classification. Second, Conley asserts that he was denied procedural due process
because the provisions for 15-year registration period for Tier I sex offenders and the possible
18-month sentence for a failure to register are inconsistent with the 60-day maximum jail term
for his voyeurism conviction. Neither of these items supports a determination that Conley was
denied procedural due process.
{¶20} In Hayden, the Supreme Court of Ohio considered a procedural due process
challenge to the Act’s precursor, Megan’s Law. The Court rejected the challenge, stating that
“[n]either the Due Process Clause of the Fourteenth Amendment to the United States
Constitution nor the analogous clause in Ohio’s Constitution, Section 16, Article I, requires a
hearing[.]” Id. at ¶ 13. This holding has been applied with equal force to procedural due process
challenges to the Act. E.g., State v. Moore, 2d Dist. Darke No. 2014-CA-13, 2015-Ohio-551, ¶
10 (“We find the case before us to be indistinguishable from the holding in Hayden.”); State v.
Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 52 (“[W]e note that Hudson was not
entitled to a hearing to challenge his initial duty to register as a sexually oriented offender since
that duty attached as a matter of law.”). Conley has failed to provide any authority that would
allow us to look past Hayden’s mandate. See App.R. 16(A)(7). As a result, we must apply that
precedent and reject Conley’s argument on this point. See State v. Bruce, 170 Ohio App. 3d 92,
11
2007-Ohio-175, ¶ 6 (1st Dist.) (stating that the Court of Appeals was “bound” to follow Supreme
Court’s precedent and could not overrule or modify that precedent).
{¶21} We also reject Conley’s procedural due process argument regarding the
inconsistency among the maximum jail term for his voyeurism conviction and his 15-year
registration period and 18-month maximum prison term for a failure to register violation. We are
unable to see how this inconsistency implicates a violation of procedural due process. Conley’s
15-year registration period was produced as a matter of law by virtue of his voyeurism
conviction. See R.C. 2950.01(E)(1)(a) (stating that a person convicted under R.C. 2907.08 is a
Tier I sex offender); R.C. 2950.07(B)(3) (providing for 15-year registration period for Tier I sex
offenders); Hudson at ¶ 52 (stating that classification and registration requirements “attached as a
matter of law”). The 18-month maximum prison term for a potential failure to register was also
created solely by virtue of his third-degree-misdemeanor voyeurism conviction and subsequent
Tier I classification. See R.C. 2950.99(A)(1)(a)(iii) (stating that a failure to register conviction
where the underlying conviction was a fifth-degree felony or misdemeanor constitutes a fourth-
degree felony). Since there was no procedural due process violation in Conley’s classification as
a Tier I sex offender without a hearing, there can be no such violation that results from any
purported inconsistency coming from that classification. Consequently, we reject Conley’s
procedural due process arguments.
C. Conley Lacks Standing to Bring a Substantive Due Process Challenge
{¶22} We now turn to Conley’s substantive due process arguments. The concept of
substantive due process refers to the special protection granted to “those fundamental rights and
liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit
in the concept of ordered liberty, such that neither liberty nor justice would exist if they were
12
sacrificed.” (Internal quotations omitted.) Glucksberg, 521 U.S. at 720-721. Conley argues that
his Tier I classification and its resultant restriction that he not live within 1,000 feet of a school,
preschool, or day-care facility, see R.C. 2950.034(A), infringes upon his substantive due process
rights because they preclude him from establishing a residence of his choosing. We are unable
to reach the merits of Conley’s argument because he lacks standing to assert it.
{¶23} Article IV, Section 4(B) of the Ohio Constitution only vests courts with
jurisdiction “over all justiciable matters.” (Emphasis added.) “A matter is justiciable only if the
complaining party has standing to sue.” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St. 3d
520, 2014-Ohio-2382, ¶ 11, citing Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio
St.3d 13, 2012-Ohio-5017, ¶ 41; see also State ex rel. Suster, 84 Ohio St. 3d 70, 77 (1998)
(“Standing is a threshold question for the court to decide in order for it to adjudicate the
action.”). The Supreme Court of Ohio has previously determined that “[t]he constitutionality of
a state statute may not be brought into question by one who is not within the class against whom
the operation of the statute is alleged to have been unconstitutionally applied and who has not
been injured by its alleged unconstitutional provision.” Palazzi v. Estate of Gardner, 32 Ohio
St.3d 169 (1987), syllabus. Further, “a hypothetical or potential injury will not give a person
standing to challenge the constitutionality of a statute.” (Internal quotation omitted.) Brooks v.
State, 9th Dist. Lorain No. 08CA9452, 2009-Ohio-1825, ¶ 11. Based on these rules, Ohio courts
have consistently determined that unless a classified sex offender presents evidence that he has
been deprived of property rights due to the Act’s residency requirements, he lacks standing to
assert a substantive due process challenge to those requirements. E.g., State v. Hall, 2d Dist.
Montgomery No. 22969, 2009-Ohio-3020, ¶ 17; State v. Pierce, 8th Dist. Cuyahoga No. 88470,
2007-Ohio-3665, ¶ 33.
13
{¶24} Here, Conley has not offered any evidence showing that he has been deprived of
his right to live where he chooses. There is no indication that he lives in a residence that is
within 1,000 feet of a school, preschool, or daycare. There is also no indication that Conley
intends to move to a residence within such an area. Consequently, the record does not reflect
that he has suffered an injury that would give him standing to bring a substantive due process
challenge to the Act’s residency requirements. In light of the foregoing, we reject Conley’s
substantive due process challenge.
{¶25} Conley has failed to establish that the Act, as it applies to him, violates procedural
due process. He has also failed to establish standing for his substantive due process claim.
Accordingly, we overrule Conley’s second assignment of error.
Assignment of Error III
The Adam Walsh Act, as applied to Patrick Conley, violates the Equal
Protection Clauses of the United States and Ohio Constitutions.
{¶26} In his third assignment of error, Conley asserts that the Act, as it applies to him,
violates his right to the equal protection of the laws. We disagree.
A. Equal Protection
{¶27} The Fourteenth Amendment to the United States Constitution relevantly provides
that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the
laws.” The Ohio Constitution provides a similar protection in Article I, Section 2: “All political
power is inherent in the people. Government is instituted for their equal protection and benefit.”
The federal and Ohio equal protection clauses are “functionally equivalent,” State v. Williams,
126 Ohio St. 3d 65, 2010-Ohio-2453, ¶ 38, and “are to be construed and analyzed identically,”
Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St. 3d 55,
60 (1999). The import of these provisions is not that they categorically forbid classifications.
14
Bur. v. Motorists Mut. Ins. Co., 118 Ohio St. 3d 493, 2008-Ohio-2751, ¶ 30. Rather, they
“‘simply keep[] governmental decisionmakers from treating differently persons who are in all
relevant respects alike.’” Id., quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
{¶28} When assessing an equal protection challenge, a court must “apply varying levels
of scrutiny * * * depending on the rights at issue and the purportedly discriminatory
classifications created by law.” Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio
St.3d 104, 2010-Ohio-4908, ¶ 18. If the challenged statute does not implicate a suspect
classification, then the court applies rational basis review. State v. Klembus, 146 Ohio St. 3d 84,
2016-Ohio-1092, ¶ 9. The parties in this matter both agree that rational basis review applies
here. Under this test, the challenged statute “does not violate equal-protection principles if it is
rationally related to a legitimate government interest.” Williams at ¶ 39, citing Eppley v. Tri-
Valley Local School Dist. Bd. of Edn., 122 Ohio St. 3d 56, 2009-Ohio-1970, ¶ 15. To properly
resolve this question, we must engage in a two-step analysis. “We must first identify a valid
state interest. Second, we must determine whether the method or means by which the state has
chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St. 3d 272,
2005-Ohio-6505, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio
St.3d 260, 267 (1995). In addition to the deference that comes from the presumption of
constitutionality, “we are to grant substantial deference to the predictive judgment of the General
Assembly” when applying rational basis review. State v. Williams, 88 Ohio St. 3d 513, 531
(2000). And, we must be mindful that “[o]ur equal protection review does not require us to
conclude that the state has chosen the best means of serving a legitimate interest, only that is has
chosen a rational one.” Fabrey v. McDonald Village Police Dept., 70 Ohio St. 3d 351, 354
(1994).
15
B. The Act Serves a Valid State Interest
{¶29} As the challenger of the Act, Conley “must negative every conceivable basis
before an equal protection challenge will be upheld.” Williams at 531. Conley has failed to
carry this burden as it relates to the first step of our analysis. The Act includes several of the
General Assembly’s findings before enacting it, including that “protection of members of the
public from sex offenders and child-victim offenders is a paramount governmental interest.”
R.C. 2950.02(A)(2). Conley has not argued that this is an invalid state interest, nor has any court
concluded that it is invalid. See, e.g., State v. Moore, 2d Dist. Darke No. 2014-CA-13, 2015-
Ohio-551, ¶ 18 (“We have held that: ‘the legislature’s stated purpose in imposing the registration
and notification requirements was to protect the safety and general welfare of the people. * * *
[T]his is a legitimate governmental objective.’”), quoting State v. Lewis, 2d Dist. Greene No. 97
CA 134, 1998 WL 771399, *3 (Oct. 2, 1998). Having determined that the Act advances a valid
state interest, we move to the Act’s relationship to that end.
C. The Act is Rationally Related to a Valid State Interest
{¶30} Conley also fails to carry his burden to show that the Act is not rationally related
to the valid state interest of protecting the public. In attempting to carry his burden, Conley
points out two aspects of the Act’s interplay with other provisions of the Revised Code as
purportedly reflecting its irrationality: (1) he is able to expunge his voyeurism conviction after
one year under R.C. 2953.32(A)(1), 2953.36(E); and (2) he is subject to a maximum 18-month
prison term if he fails to register, which is far greater than the 60-day maximum jail term he
could receive for his conviction in this matter. Neither of these factors indicates irrationality.
{¶31} The availability of an expungement to Conley after one year does not render the
Act irrationally related to the aim of protecting the public from sex offenders. Conley’s
16
argument on this point does not vary the General Assembly’s findings regarding the recidivism
of sex offenders and the public’s need to receive adequate notice and information about them.
See R.C. 2950.02(A)(1), (2). And, we note that while Conley may request an expungement for
his voyeurism conviction, such an expungement is not mandated and is left to the trial court’s
discretion based upon its consideration of several factors. See R.C. 2953.32(C). Consequently,
we decline to seize upon the possibility of an expungement to conclude that the Act is
irrationally related to the state interest of protecting the public.
{¶32} We likewise reject Conley’s argument about the relationship of the potential
penalty for a failure to register and the possible sentence he could receive for his voyeurism
conviction. If a defendant convicted of a misdemeanor fails to register as required, he commits a
new criminal offense that is a felony of the fourth degree. See R.C. 2950.99(A)(1)(a)(iii). Thus,
when a defendant is found guilty of failing to register, a court does not sentence him again for his
underlying conviction but rather for the new misconduct of failing to register. See State v. Lloyd,
132 Ohio St. 3d 135, 2012-Ohio-2015, ¶ 42 (“[T]he penalty provision [of R.C. 2950.99] builds
upon the registration provisions.”). Compare State v. Beverly, 4th Dist. Ross No. 01CA2603,
2002 WL 59643, *3 (Jan. 11, 2002) (“Thus, when the defendant violates community control, the
court imposes an appropriate sanction for that misconduct, but not for the original or underlying
crime.”). Additionally, “[w]hen a person commits a failure to register offense, he exhibits
recidivist behavior given that (1) he already has a prior offense that triggered the registration
requirements, and (2) the failure to register offense stems from a person’s inability to follow the
law and adhere to the registration requirements imposed upon him.” State v. Richey, 10th Dist.
Franklin No. 09AP-36, 2009-Ohio-4487, ¶ 20. In light of the inherently recidivist nature of a
failure to register violation, we cannot conclude that the General Assembly was irrational in
17
making such a violation a fourth-degree felony as opposed to requiring that the violation match
the degree of the underlying conviction, as suggested by Conley. See R.C. 2950.02(A)(2)
(stating that “[s]ex offenders and child-victim offenders pose a risk of engaging in further
sexually abusive behavior even after being released from imprisonment, a prison term, or other
confinement or detention”). Compare R.C. 2919.25(D)(3)-(4) (providing that defendant with
previous domestic violence convictions faces a higher-degree offense for later domestic violence
convictions).
{¶33} In sum, the Act is rationally related to the valid state interest of protecting the
public from sex offenders. Accordingly, we overrule Conley’s third assignment of error.
III.
{¶34} Having overruled Conley’s three assignments of error, we affirm the judgment of
the Stow Municipal Court.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Stow Municipal
Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
HENSAL, J.
CONCURS.
CARR, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶35} I concur in judgment only in regard to the second assignment of error. With
respect to the first and third assignments of error, Conley acknowledged in his brief that these
two issues were before the Supreme Court of Ohio in State v. Blankenship, 145 Ohio St. 3d 221,
2015-Ohio-4624. I concur based on Conley’s acknowledgement that Blankenship is controlling.
APPEARANCES:
SARAH. M. SCHREGARDUS, Attorney at Law, for Appellant.
NICOLE WELSH, Attorney at Law, for Appellee.