State v. Henthorn , 2011 Ohio 5579 ( 2011 )

[Cite as State v. Henthorn, 2011-Ohio-5579.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE STATE OF OHIO, : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Appellee, : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
v. :
: Case No. 11-COA-011
BRUCE E. HENTHORN JR., :
:
:
Appellant. : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas Case No. 08-CIV-086
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: October 25, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RAMONA FRANCESCONI ROGERS JOSEPH P. KEARNS, JR. 0063413
0031149 Mason, Mason, & Kearns
Ashland County Prosecutor 153 W. Main St.
307 Orange St. Ashland, Ohio 33805
Ashland, Ohio 44805
MICHAEL D. DONATINI 0080778
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Henthorn, 2011-Ohio-5579.]
Delaney, J.
{¶ 1} Defendant-Appellant, Bruce E. Henthorn, appeals from the judgment of
the Ashland County Court of Common Pleas, classifying him as a Tier III sex offender,
when he had previously been declared to be a sexually oriented offender. The State of
Ohio is Plaintiff-Appellee.
{¶ 2} In 1999, Appellant pled guilty to one count of sexual battery, a felony of
the first degree, in violation of R.C. 2907.03(A)(4). He was sentenced to 14 months in
prison and was classified, by operation of law, as a sexually oriented offender. No
reclassification hearing was held, therefore, Appellant’s classification was by operation
of law. See former Ohio Revised Code Chapter 2950.
{¶ 3} In 2007, Senate Bill 10, also known as the Adam Walsh Act “(AWA”)
reorganized the classification of sexually oriented offenders. See R.C. 2950.031 and
R.C. 2950.032. At that time, the legislature designated the duty of reorganizing Ohio’s
sex offender classification based on conviction alone. Based on the level of offense,
offenders were classified as either Tier I, Tier II, or Tier III offenders, with Tier III being
the most serious of offenders who are required to register for life and to register every
ninety days, among other restrictions.
{¶ 4} Appellant was still serving his ten year sex offender registration
requirements pursuant to the previous sex offender law, known as Megan’s law, in
2007. Pursuant to Senate Bill 10, Appellant was reclassified as a Tier III offender based
on his conviction of sexual battery. Specifically, on December 8, 2007, Appellant
received a Notice of New Classification and Registration Duties, based on S.B. 10, from
the Office of Ohio Attorney General, informing him of his reclassification.
Ashland County, Case No. 11-COA-011 3
{¶ 5} On January 7, 2008, Appellant filed a petition with the Ashland County
Court of Common Pleas to challenge his reclassification pursuant to R.C. 2950.031(E).
In his Petition, Appellant argued that the State's reclassification was improper and
unconstitutional. Specifically, Appellant raised four issues: (1) the retroactive application
of Ohio's Adam Walsh Act violated the prohibition on ex post facto laws in Article I,
Section 10 of the United States Constitution; (2) the retroactive application of Ohio's
Adam Walsh Action violates the prohibition on retroactive laws in Article II, Section 28 of
the Ohio Constitution; (3) reclassification of the Petitioner constitutes a violation of the
separation of powers doctrine; and (4) reclassification of Petitioner constitutes
impermissible multiple punishment under the double jeopardy clauses of the United
States and Ohio Constitution.
{¶ 6} The State filed a Motion to Dismiss pursuant to Civ.R. 12(B)(1), (2), (4),
(5), and (7) on February 8, 2008. The State argued that Appellant's Petition to Contest
Reclassification constituted a defective declaratory judgment action under R.C. 2721.12
rather than a statutory petition to contest reclassification under R.C. 2950.031(E) and
R.C. 2950.032(E). Because Appellant brought a constitutional challenge to S.B. 10, the
State argued the trial court should consider Appellant's petition to be a declaratory
judgment action and as such, Appellant was required to follow the procedural mandates
thereof. In its motion, the State contended in part that the trial court lacked subject
matter jurisdiction over Appellant's declaratory judgment action because Appellant failed
to join the Ohio Attorney General, a necessary party to a constitutional challenge.
{¶ 7} Appellant did not respond to the motion.
Ashland County, Case No. 11-COA-011 4
{¶ 8} On April 30, 2009, the trial court granted the State's Motion to Dismiss.
The trial court found that Appellant's Petition for Reclassification did not contest under
R.C. 2950.031(E) or R.C. 2950.032(E) the manner in which the Attorney General's letter
specifies that the new registration requirements apply to Appellant or whether those
new registration requirements apply at all to Appellant. The trial court reviewed
Appellant's petition and found that Appellant sought declaratory judgment that S.B. 10
was unconstitutional as it applied to Appellant. Because Appellant did not join the
Attorney General as a party, the trial court dismissed Appellant's petition.
{¶ 9} Appellant filed a Motion to Reconsider and for Relief on May 28, 2009.
The trial court did not rule on the motion before Appellant filed his notice of appeal on
June 1, 2009. This Court, in State v. Henthorn, 5th Dist. No. 09-COA-020, 2010-Ohio-
1731, reversed the trial court, holding that Appellant was entitled to have his petition
heard by the trial court.
{¶ 10} In the interim, the Ohio Supreme Court issued its decision in State v.
Bodyke, 126 Ohio St.3d 1235, 2010-Ohio-2424, 933 N.E.2d 753. In Bodyke, the Court,
at paragraphs two and three of the syllabus, held the following:
{¶ 11} “R.C. 2950.031 and 2950.032, which require the attorney general to
reclassify sex offenders who have already been classified by court order under former
law, impermissibly instruct the executive branch to review past decisions of the judicial
branch and thereby violate the separation-of-powers doctrine.
{¶ 12} “R.C. 2950.031 and 2950.032, which require the attorney general to
reclassify sex offenders whose classifications have already been adjudicated by a court
Ashland County, Case No. 11-COA-011 5
and made the subject of a final order, violate the separation-of-powers doctrine by
requiring the opening of final judgments.”
{¶ 13} After a thorough discussion on Ohio's evolving law governing the
registration and classification of sex offenders and the ensuing community-notification
requirements, along with the separation of powers doctrine, Justice O'Connor explained
the precise holding of the Bodyke case at ¶¶ 54 and 60-61:
{¶ 14} “With these principles in mind, we turn to a key aspect of the AWA-the
reclassification scheme. That scheme requires the attorney general to reclassify
offenders who previously were classified by Ohio judges according to the provisions in
Megan's Law and its precursor.
{¶ 15} “Thus, we conclude that R.C. 2950.031 and R.C. 2950.032, which require
the attorney general to reclassify sex offenders who have already been classified by
court order under former law, impermissibly instruct the executive branch to review past
decisions of the judicial branch and thereby violate the separation-of-powers doctrine.
{¶ 16} “We further conclude that R.C. 2950.031 and 2950.032, which require the
attorney general to reclassify sex offenders whose classifications have already been
adjudicated by a court and made the subject of a final order, violate the separation-of-
powers doctrine by requiring the opening of final judgments.”
{¶ 17} Accordingly, Appellant now raises one Assignment of Error:
{¶ 18} “I. THE TRIAL COURT ERRED BY RULING THAT THE APPELLANT
COULD BE RECLASSIFIED UNDER THE ADAM WALSH ACT DESPITE
PREVIOUSLY BEING CLASSIFIED AS SEXUALLY ORIENTED OFFENDER.” [SIC]
Ashland County, Case No. 11-COA-011 6
{¶ 19} In Appellant’s sole assignment of error, he asserts that because he was
classified as a sexually oriented offender by “operation of law”, his Tier III classification
is unconstitutionally imposed. In State v. Williams, -- Ohio St.3d --, 2011-Ohio-3374, --
N.E.2d --, syllabus, the Ohio Supreme Court held that “2007 Am.Sub.S.B. No. 10, as
applied to defendants who committed sex offenses prior to its enactment, violates
Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly
from passing retroactive laws.”
{¶ 20} Appellant was classified as a sexually oriented offender prior to the
enactment of S.B. 10. Accordingly, pursuant to the Supreme Court’s ruling in Williams,
Appellant was improperly reclassified as a Tier III offender.
{¶ 21} Appellant’s assignment of error is sustained.
{¶ 22} The judgment of the Ashland County Court of Common Pleas is reversed
and remanded for proceedings consistent with this Opinion.
By: Delaney, J.
Gwin, P.J. and Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as State v. Henthorn, 2011-Ohio-5579.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE STATE OF OHIO, :
:
Appellee, :
:
:
v. : JUDGMENT ENTRY
:
BRUCE E. HENTHORN JR., :
:
Appellant. : Case No. 11-COA-011
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Ashland County Court of Common Pleas is reversed and remanded.
Costs assessed to Appellee.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN