Hannah v. State , 2011 Ohio 2930 ( 2011 )

[Cite as Hannah v. State, 2011-Ohio-2930.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95883, 95884, 95885, 95886
95887, 95888, and 95889
JAMES S. HANNAH, ET AL.
PLAINTIFFS-APPELLANTS
vs.
STATE OF OHIO
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CV-646974, CV-646851, CV-649573,
CV-648483, CV-646802, CV-676429, and CV-648566
BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEYS FOR APPELLANTS
Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} These consolidated appeals arise from the trial court’s rulings in
a group of sex offender reclassification cases. In Appeal Nos. 95883, 95884,
95885, 95886, 95887, 95888, and 95889, plaintiffs-appellants (collectively
referred to as “appellants”) appeal their reclassifications under S.B. 10, Ohio’s
Adam Walsh Act (“AWA”). Pursuant to the Ohio Supreme Court’s recent
decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d
753, we vacate appellants’ reclassifications and remand to the trial court to
reinstate their previously imposed classifications, community-notification,
and registration orders.
{¶ 2} All seven appellants were previously classified as sexually
oriented offenders, the least restrictive tier under Ohio’s Megan’s Law, based
on the following offenses:
{¶ 3} James Hannah pled guilty and was convicted of rape in 1993.
{¶ 4} Otto Hansen pled guilty and was convicted of rape in 1987.
{¶ 5} David Wooten pled guilty and was convicted of attempted rape in
1993.
{¶ 6} Kenneth Mason pled guilty and was convicted of sexual battery in
2003.
{¶ 7} James Miller pled guilty and was convicted of rape in 1987.
{¶ 8} Walter Fisher was convicted in 1983 of oral copulation in
Bakersfield, California.
{¶ 9} Tyrus Kenney was convicted of an offense in Norfolk, Virginia in
2005 that the Ohio Attorney General determined to be substantially
equivalent to unlawful sexual conduct with a minor.
{¶ 10} Appellants’ classification decisions were made after judicial
hearing in all but three cases, Walter Fisher, Tyrus Kenney, and David
Wooten. In Fisher’s, Kenney’s, and Wooten’s cases, each was classified as a
sexually oriented offender by operation of law based solely on their
convictions for sex offenses.
{¶ 11} As sexually oriented offenders under Megan’s Law, appellants
were only required to register once a year for ten years and were not subject
to community notifications. See former R.C. 2950.04, 2950.05, 2950.06, and
2950.11.
{¶ 12} In 2006, Congress passed the Adam Walsh Child Protection and
Safety Act (“AWA”), which created national standards for sexual offender
classification, registration, and community notification. As a result, Ohio
reorganized its sexual offender registration scheme in 2007 by enacting its
version of the AWA, also known as S.B. 10, which became effective on July 1,
2007 and January 1, 2008. S.B. 10 repealed the three-level scheme set forth
under Megan’s Law (“sexually oriented offender,” “habitual sexual offender,”
and “sexual predator”), and replaced it with a new three-tier system (Tier I,
Tier II, and Tier III).
{¶ 13} Pursuant to R.C. 2950.031 and 2950.032, the Ohio Attorney
General reclassified all seven appellants as Tier III sex offenders under the
AWA. As a result of this new classification, appellants were required to
register every 90 days for life as Tier III sex offenders rather than annually
for ten years as sexually oriented offenders.
{¶ 14} Appellants filed petitions in the Cuyahoga County common pleas
court to contest the application of the AWA to their respective cases. While
appellants’ cases were pending in the trial court, the Ohio Supreme Court
held that the reclassification provisions of the AWA were unconstitutional
and unenforceable. Bodyke, supra. In reliance on Bodyke, appellants each
filed a motion for summary judgment, arguing that they were entitled, as a
matter of law, to be returned to their previous classifications under Megan’s
Law. The trial court denied appellants’ summary judgment motions and
dismissed their petitions with prejudice. On September 21, 2010, the trial
court entered the following order:
{¶ 15} “FINAL MOTION FOR SUMMARY JUDGMENT DENIED;
FINAL. THIS COURT RETAINS JURISDICTION OVER ALL
POST-JUDGMENT MOTIONS. COURT COST ASSESSED TO THE
PLAINTIFF(S).”
{¶ 16} Appellants raise four assignments of error for review.
{¶ 17} “I. The trial court improperly denied appellants’ claim that the
AWA violated the separation of powers doctrine and could not be applied to
them.”
{¶ 18} “II. The trial court erred in dismissing appellants’ AWA
petitions without ruling on all of appellants’ claims.”
{¶ 19} “III. The trial court erred in sua sponte dismissing appellants’
petitions without proper notice.”
{¶ 20} “IV. The trial court erred in dismissing appellants’ ex post facto,
retroactivity, double jeopardy, breach of plea and contracts clause, due
process, and community notification claims.”
Law and Analysis
{¶ 21} In their first assignment of error, appellants argue that the
application of the AWA to offenders whose crimes were committed before the
AWA’s effective dates violates numerous constitutional rights, including the
separation-of- powers doctrine.
{¶ 22} In Bodyke, supra, the Ohio Supreme Court concluded that “R.C.
2950.031 and 2950.032, the reclassification provisions in the AWA, are
unconstitutional because they violate the separation-of-powers doctrine.” Id.
at ¶2. The court emphasized the importance of separation of powers and
noted that it has “held that ‘[t]he administration of justice by the judicial
branch of the government cannot be impeded by the other branches of the
government in the exercise of their respective powers.’” Id. at ¶45, quoting
State ex rel. Johnston v. Taulbee (1981), 66 Ohio St.2d 417, 423 N.E.2d 80,
paragraph one of the syllabus.
{¶ 23} Concluding that R.C. 2950.031 and 2950.032 are
unconstitutional, the Ohio Supreme Court chose severance as a remedy.
Specifically, the court stated, “As a remedy, we strike R.C. 2950.031 and
2950.032, hold that the reclassifications of sex offenders by the Attorney
General are invalid, and reinstate prior judicial classifications of sex
offenders.” Id. at ¶2.
{¶ 24} The state concedes that appellants Hannah, Hansen, Mason, and
Miller are entitled to have their Megan’s Law classifications reinstated
pursuant to Bodyke because they each received a court-ordered classification.
See, e.g. Pierson, et al. v. State, Cuyahoga App. Nos. 92173-92175, 92177,
92179, 92182-92185, 92187-92188, 92199-92206, 92240, 92248-92251,
92255-92257, 92277, 92312, and 92328, 2010-Ohio-3060; Means, et al. v.
State, Cuyahoga App. Nos. 92936-92939 and 92941-92945, 2010-Ohio-3082.
{¶ 25} However, the state argues that Bodyke does not apply to
appellants Fisher, Kenny, or Wooten because their duty to register as
sexually oriented offenders arose by operation of law.
Fisher, Kenney, and Wooten
{¶ 26} The record indicates that Fisher’s and Kenney’s underlying
sexual offenses occurred outside the state of Ohio. As out-of-state offenders,
their duty to register as a sexually oriented offender arose automatically and
by operation of law because they were convicted of a sex offense and the trial
court did not make a determination that they were a sexual predator or
habitual sexual offender. See State v. Hayden, 96 Ohio St.3d 211,
2002-Ohio-4169, 773 N.E.2d 502. Similarly, Wooten’s duty to register as a
sexually oriented offender arose by operation of law. Although Wooten’s
underlying offense occurred in the state of Ohio, his duty to register arose by
operation of law because he did not receive a court-ordered classification.
{¶ 27} The state argues that because Kenney’s, Fisher’s, and Wooten’s
duty to register as sexually oriented offenders arose by operation of law
rather than by judicial order, there is no separation-of-powers violation.
Therefore, the state contends that Kenney, Fisher, and Wooten do not fit
within the holding of Bodyke. We disagree.
{¶ 28} We recognize that the state raises a conceivably correct
interpretation of Bodyke and that the language in Bodyke appears to limit its
separation-of- powers holding to judicially classified sex offenders and not
those sex offenders classified by operation of law. However, the remedy of
Bodyke was complete and included total severance of the provisions providing
for the attorney general’s authority to reclassify sex offenders. The
severance makes no distinction between those classified judicially and those
classified by operation of law. Moreover, after Bodyke was rendered, the
Ohio Supreme Court was asked for clarification on this very issue, but
declined to offer either reconsideration or clarification, which suggests that
the effect of severance is applicable to all sex offenders, whether classified
judicially or by operation of law. Therefore, offenders whose pre-AWA
classification arose purely as a matter of law still must receive the benefit of
the Bodyke remedy returning those offenders to their pre-AWA classifications
because of Bodyke’s complete severance of the statutory provisions governing
reclassification by the attorney general. See Core v. Ohio, Franklin App. No.
09AP-192, 2010-Ohio-6292 (applying Bodyke to a case in which the offender’s
classification resulted from an out-of-state conviction); State v. Hazlett, 191
Ohio App.3d 105, 2010-Ohio-6119, 944 N.E.2d 1220 (applying Bodyke to a
case in which the offender was never judicially classified and whose
classification therefore arose purely as a matter of law). See, also, Robinson
v. State, Franklin App. No. 10AP-647, 2011-Ohio-1600; State v. Johnson,
Franklin App. No. 10AP-932, 2011-Ohio-2009.
{¶ 29} Given that the statutory provisions authorizing the attorney
general to reclassify sex offenders have been severed and excised from the
Ohio Revised Code, we find that the action taken by the Ohio Supreme Court
in Bodyke, i.e., reinstating sex offenders to their sex offender classifications as
they existed prior to the implementation of the AWA, to be equally applicable
here.
{¶ 30} Accordingly, we sustain appellants’ first assignment of error and,
in accordance with Bodyke, find that the reclassifications of these appellants
made under the severed statutes must be vacated and their prior sex offender
classifications reinstated. In light of the foregoing, appellants’ remaining
assignments of error, all involving other constitutional challenges to S.B. 10,
are rendered moot.
{¶ 31} This cause is reversed and remanded to the lower court for
further proceedings consistent with this opinion.
It is ordered that appellants recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, A.J., and
SEAN C. GALLAGHER, J., CONCUR