State v. Hudson , 2013 Ohio 647 ( 2013 )

[Cite as State v. Hudson, 2013-Ohio-647.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-12-38
v.
LARRY DEAN HUDSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 11-CR-0647
Judgment Affirmed
Date of Decision: February 25, 2013
APPEARANCES:
Jeff Ratliff for Appellant
Brent W. Yager for Appellee
Case No. 9-12-38
PRESTON, P.J.
{¶1} Defendant-appellant, Larry Dean Hudson, appeals the Marion County
Court of Common Pleas’ judgment entry of conviction and sentence stemming
from his failure to provide notice of his change of address for purposes of his
sexual offender registration. For the reasons that follow, we affirm.
{¶2} On September 26, 1996, Hudson was convicted of gross sexual
imposition in the Court of Common Pleas for Marion County, Ohio in Case
Number 96-CR-0207, a felony of the fourth degree.1 Hudson was sentenced to a
term of six (6) months in prison with the sentence to run consecutively to a twelve
(12) month prison term imposed in Marion County Common Pleas Court Case
Number 95-CR-0090.
{¶3} At the time of Hudson’s 1996 conviction, Ohio was operating under
the federally mandated Jacob Wetterling Act, 42 U.S.C. §§ 14071, et seq., codified
in Ohio Revised Code Chapter 2950.
{¶4} The Ohio General Assembly passed H.B. 180, the State’s version of
the federally mandated Megan’s Law, with an effective date of July 1, 1997. On
that date, Hudson was still serving the term of imprisonment for gross sexual
imposition imposed in 1996. Therefore, he was subject to the provisions of the
new Megan’s Law pursuant to the newly enacted O.R.C. § 2950.04(A).
1
The procedural history of this case comes directly from the parties’ stipulation of facts. (Doc. No. 39).
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{¶5} While still incarcerated, Hudson was notified by the Ohio Department
of Rehabilitation and Corrections and the trial court that his sex offender
registration status would be determined pursuant to the 1997 version of O.R.C. §
2950.09(C)(1).
{¶6} On October 21, 1997, the trial court determined, without a hearing,
that Hudson was not a sexual predator. Other than the court order issued on
October 21, 1997, no other court or parole board has ever held a hearing to
determine Hudson’s duty to register as a sex offender.
{¶7} On or about October 30, 1997, Hudson was notified by the Marion
County Sheriff’s Office that he would be required to register as a sexually oriented
offender upon his release from prison; that he would be required to register for a
period of ten (10) years; and, that he was required to register with the Sheriff’s
office by November 5, 1997.
{¶8} Since October 1997, Hudson had served four (4) additional prison
terms, including terms of incarceration of four (4) years, six (6) months, eight (8)
months and fourteen (14) months for convictions stemming from non-sex offenses
in 2000, 2006, 2007, and 2010. No additional duties to register as a sex offender
were imposed on Hudson in any of these subsequent convictions.
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{¶9} Since his initial registration date, Hudson had registered with the
Marion County Sheriff’s Office and has signed several notices of explanations of
duties to register.
{¶10} On March 31, 1999, Ohio’s 1998 H.B. 565 became effective, which
was codified under newly enacted O.R.C. § 2950.07(D).
{¶11} On August 1, 2008, Ohio’s version of the federally mandated Adam
Walsh Act became effective. Subsequently, the Ohio Attorney General designated
Hudson as a Tier II sex offender. Hudson was notified that he would have to
register for twenty-five (25) years with verification every 180 days after the initial
registration.
{¶12} On June 2, 2011, Hudson was released from prison on a 2010
conviction. He registered at his sister’s address at 412 East Farming Street,
Marion, Ohio as his residence with the Marion County Sheriff’s Office. He was
informed by the Agency that he was required to comply with the provisions of the
Adam Walsh Act.
{¶13} On August 23, 2011, the Marion County Sheriff’s Office in
conjunction with the U.S. Marshall’s Office conducted a county-wide sweep to
check sex offender registrations. On arriving at Hudson’s registered residential
address, it was discovered he had not lived there for more than one (1) month.
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{¶14} Hudson failed to notify the Marion County Sheriff’s Office that he
was no longer residing at 412 East Farming Street, Marion, Ohio.
{¶15} On the annual verification date for Hudson’s sex offender
registration, Hudson did not appear at the Sheriff’s office to verify his registration
information. When Hudson failed to appear on September 1, 2011, a certified
letter was sent to his registered address of 412 East Farming Street, Marion, Ohio
advising him that he was required to complete his annual verification by
September 14, 2011. Hudson again failed to appear.
{¶16} On December 15, 2011, Hudson was arrested by officers of the
Marion County Sheriff’s Office. He advised the arresting officers that he failed to
notify the Sheriff’s Office of the change of address as he was homeless on leaving
his sister’s residence.
{¶17} The only conviction that could impose a duty upon Hudson to
register as a sex offender was his 1996 conviction for gross sexual imposition.2
{¶18} On December 21, 2011, the Marion County Grand Jury indicted
Hudson on Count One of failure to provide notice of change of address in
violation of R.C. 2950.05(A), a third degree felony, and Count Two of failure to
verify sex offender registration in violation of R.C. 2950.05(A), a third degree
felony. (Doc. No. 1).
2
This ends the portion of facts stipulated to by the parties herein. (Doc. No. 39).
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{¶19} On December 27, 2011, Hudson was arraigned and entered a plea of
not guilty. (Doc. No. 5).
{¶20} On February 22, 2012, Hudson filed a motion to dismiss the
indictment arguing that he was no longer required to register as a sex offender
since his ten-year registration period had already expired. (Doc. No. 16).
{¶21} On March 1, 2012, the State filed a memorandum in opposition to
Hudson’s motion to dismiss, arguing that Hudson was a “sexually oriented
offender,” by operation of Megan’s Law enacted in R.C. 2950.04(A)(1), and
required to register for ten years per R.C. 2950.07(B)(3). (Doc. No. 22). The
State further argued that Hudson’s ten-year registration period was tolled while he
was incarcerated on unrelated offenses pursuant to R.C. 2950.07(D), enacted by
H.B. 565 and effective March 31, 1999. (Id.). According to the State, Hudson’s
registration period will not expire before October 2013. (Id.).
{¶22} On March 13, 2012, Hudson filed a memorandum in opposition to
the State, arguing that the application of R.C. 2950.07(D)’s tolling provision,
effective after his conviction, would violate the Ex Post Facto Clause of the U.S.
Constitution and Section 28, Article II of the Ohio Constitution. (Doc. No. 26).
{¶23} On April 24, 2012, the trial court overruled Hudson’s motion to
dismiss. (Doc. No. 32).
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{¶24} On May 24, 2012, the trial court held a change of plea hearing.
(Doc. No. 43). Upon the State’s motion, the trial court dismissed the indictment;
Hudson waived the requirement for an indictment; and, Hudson pled no contest to
a bill of information charging him with one count of failure to provide notice of
change of address in violation of R.C. 2950.05(A), a third degree felony. (Doc.
Nos. 34, 38, 43). The parties entered a written stipulation of facts for the trial
court to adopt along with Hudson’s no contest plea to the bill of information.
(Doc. No. 39). The trial court found Hudson guilty and sentenced him to two
years of community control. (Doc. No. 43). The trial court stayed Hudson’s
sentence pending appeal. (Doc. No. 36). On June 6, 2012, the trial court filed its
judgment entry of conviction and sentence. (Doc. No. 43).
{¶25} On July 5, 2012, Hudson filed a notice of appeal. (Doc. No. 48).
Hudson now appeals raising two assignments of error for our review.
Assignment of Error No. I
The tolling provision contained in O.R.C. §2950.07(D) is
unconstitutional as it violates Section 28, Article II of the Ohio
Constitution because (1) the General Assembly did not express a
clear declaration that the tolling provision would be applied
retroactively, and (2) the tolling provision is punitive as it
applies to pre-1998 H.B. 565 offenders.
{¶26} In his first assignment of error, Hudson argues that his ten-year
registration period under Megan’s Law commenced on his release from prison,
October 29, 1997, and therefore, terminated on October 29, 2007. Hudson argues
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that R.C. 2950.07(D), which tolls the registration period for any time during which
the offender is re-incarcerated and was effective subsequent to his conviction (on
March 31, 1999), does not apply retroactively; and, if it does, violates Section 28,
Article II of the Ohio Constitution, the prohibition against ex post facto laws.
{¶27} This case requires both the interpretation of a statute and a
determination regarding its constitutionality, which are issues of law we review de
novo. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 8 (statutory
interpretation); City of Akron v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-
4095, ¶ 23 (9th Dist.). (constitutionality); Andreyko v. City of Cincinnati, 153 Ohio
App.3d 108, 2003-Ohio-2759, ¶ 11 (1st Dist.) (same). De novo review is
independent, without deference to the lower court’s decision. See Ohio Bell Tel.
Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
{¶28} “‘An enactment of the General Assembly is presumed to be
constitutional, and before a court may declare it unconstitutional, it must appear
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. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of
the syllabus. “That presumption applies to amended R.C. Chapter 2950 * * * and
remains unless [the appellant] establishes, beyond reasonable doubt, that the
statute is unconstitutional.” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824,
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¶ 12, citing Cook, 83 Ohio St.3d at 409; Roosevelt Properties Co. v. Kinney, 12
Ohio St.3d 7, 13 (1984).
{¶29} Notwithstanding the presumption of constitutionality, Section 28,
Article II of the Ohio Constitution prohibits the General Assembly from
retroactively impairing a vested, substantive right. Consilio, 2007-Ohio-4163, at ¶
9, citing State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 13. However, the
General Assembly may make legislation retroactive if it is merely remedial in
nature. Id., citing State ex rel. Slaughter v. Indus. Comm., 132 Ohio St. 537, 542
(1937). Statutes are presumed to apply prospectively unless expressly declared to
be retroactive. LaSalle at ¶ 14, citing R.C. 1.48 and Van Fossen v. Babcock &
Wilcox Co., 36 Ohio St.3d 100, 105 (1988); Ferguson, 2008-Ohio-4824, at ¶ 15,
citing Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, ¶ 10.
{¶30} To determine whether a statute may be applied retroactively requires
a two-part test. Consilio at ¶ 10; Ferguson at ¶ 13. First, the reviewing court must
determine, as a threshold matter, whether the General Assembly expressly made
the statute retroactive. Consilio at ¶ 10, citing LaSalle, at ¶ 14, citing Van Fossen,
36 Ohio St.3d 100, at paragraphs one and two of the syllabus; Ferguson at ¶ 13-
14. “The General Assembly’s failure to clearly enunciate retroactivity ends the
analysis, and the relevant statute may be applied only prospectively.” Consilio at
¶ 10; Ferguson at ¶ 13. If the statute is retroactive, though, the reviewing court
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must then determine whether it is substantive or remedial in nature. Consilio at ¶
10, citing LaSalle at ¶ 14; Ferguson at ¶ 13.
{¶31} As amended by Am. Sub. H.B. 565, R.C. 2950.07(D), the tolling
provision at issue here, provided:
The duty of an offender to register under this chapter is tolled for
any period during which the offender is returned to confinement for
any reason or imprisoned for an offense when the confinement or
imprisonment occurs subsequent to the date determined pursuant to
division (A) of this section. The offender’s duty to register under this
chapter resumes upon the offender’s release from confinement or
imprisonment.
(Emphasis added) (Eff. 3-30-99). R.C. 2950.07(A), referenced in division (D)
above, provided for the commencement date of the registration requirements
codified in R.C. Sections 2950.04, 2950.05, and 2950.06. R.C. 2950.07(A)
described the type of offender for whom the registration requirement commenced
as “an offender who is convicted of or pleads guilty to, or has been convicted of or
pleaded guilty to, a sexually oriented offense * * *.” (Emphasis added) (Eff. 3-30-
99). R.C. 2950.04, which codified the actual duty to register, provided:
(A) Each offender who is convicted of or pleads guilty to, or has
been convicted of or pleaded guilty to, a sexually oriented offense
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and who is described in division (A)(1), (2), or (3) of this section
shall register with the sheriff of the following applicable county and
at the following time:
(1) Regardless of when the sexually oriented offense was
committed, if the offender is sentenced for the sexually oriented
offense to a prison term, a term of imprisonment, or any other type
of confinement and if, on or after July 1, 1997, the offender is
released in any manner from a prison term, term of imprisonment, or
confinement, within seven days of the offender’s coming into any
county in which the offender resides or temporarily is domiciled for
more than seven days, the offender shall register with the sheriff of
that county.
(Emphasis added) (Eff. 3-30-99).
{¶32} Hudson acknowledges that the Ohio Supreme Court has already
determined that the General Assembly intended R.C. 2950.04(A) to apply
retroactively and that the registration requirements found in Megan’s Law are
remedial in nature. Cook, 83 Ohio St.3d at 410-413. Nevertheless, Hudson argues
that the General Assembly did not expressly state that R.C. 2950.07(D) was to
apply retroactively; and therefore, R.C. 1.48’s presumption of prospective
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application governs. Hudson relies heavily upon the Ohio Supreme Court’s
decision in Hyle v. Porter in support of his position. 2008-Ohio-542.
{¶33} In Hyle v. Porter, the Ohio Supreme Court analyzed the retroactivity
of R.C. 2950.031, which prohibited convicted sex offenders from residing within
1,000 feet of any school premises. 2008-Ohio-542, at ¶ 4. The statute provided
that:
No person who has been convicted of, is convicted of, or has
pleaded guilty to, or pleads guilty to either a sexually oriented
offense that is not a registration-exempt sexually oriented offense or
a child-victim oriented offense shall establish a residence or occupy
residential premises within one thousand feet of any school
premises.
Id. Hyle, the chief legal officer of Green Township, obtained a permanent
injunction prohibiting Porter, a convicted sex offender, from continuing to occupy
his residence that was located within 1,000 feet of a school premises. Id. at ¶ 5.
Porter appealed the trial court’s injunction, but the appellate court affirmed
holding that R.C. 2950.031 could be applied retroactively to sex offenders, like
Porter, who bought his home and committed his offense before the effective date
of the statute. Id. at ¶ 6.
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{¶34} On appeal to the Ohio Supreme Court, Hyle argued that the General
Assembly expressed its intent to apply R.C. 2950.031 retroactively because: (1)
the statute used both present and past tense verbs to describe the convicted sex
offenders; to wit: “[n]o person who has been convicted of, is convicted of, has
pleaded guilty to, or pleads guilty to [specified categories of sexual offenses] * *
*”; and (2) “R.C. Chapter 2950 as a whole supports the General Assembly’s
retroactive intent.” Id. at ¶ 11, 23. Amicus curiae Attorney General of Ohio
argued that the statute’s phrase “shall establish a residence or occupy residential
premises” describes two categories of prohibited behavior and that unless the term
“occupy” was interpreted to mean “continue to occupy,” the phrases “shall
establish a residence” and “occupy residential premises” were redundant. Id. at ¶
12. Therefore, the Attorney General argued that the statute applied to sex
offenders who purchased their homes before or after the effective date of the
statute. Id.
{¶35} The Ohio Supreme Court rejected each of these arguments, however.
The Court determined that the statute’s use of past and present tense verbs to
describe the types of sex offenders and the statute’s description of the prohibited
acts presented a mere “suggestion of retroactivity” rendering the statute
“ambiguous” and was not a “clear declaration of retroactivity * * * sufficient to
overcome the presumption of prospective application” Id. at ¶ 13 (emphasis sic).
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The Court also rejected Hyle’s argument that R.C. Chapter 2950 as a whole was
enough to convey the legislature’s intent to make R.C. 2950.031 retroactive,
because it would reverse R.C. 1.48’s presumption of prospective application. Id.
at ¶ 23.
{¶36} In a subsequent case, however, the Ohio Supreme Court determined
that the legislature intended the S.B. 5 amendments to R.C. Chapter 2950 to apply
retroactively. State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824. The statutes
at issue in Ferguson were former R.C. 2950.07(B)(1), which provided for a life-
time designation of “sexual predator,” as well as the concomitant duty to register;
former R.C. 2950.04(A), which provided increased registration requirements; and,
former R.C. 2950.081, which expanded the community-notification requirements.
Id. at ¶ 8-10.
{¶37} The Court’s retroactivity analysis in Ferguson differed from its
retroactivity analysis in Hyle. Initially, the Court in Ferguson, consistent with its
analysis in Hyle, examined the text of R.C. 2950.04(A)(1) and determined that the
General Assembly intended it to be applied retroactively, because the statute
specifically stated that it applied “[r]egardless of when the child-victim oriented
offense was committed.” Id. at ¶ 16-17. With respect to R.C. 2950.07(B)(1) and
R.C. 2950.081, though, the Court determined that the General Assembly intended
these provisions to be retroactive without relying upon any express language in the
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sections themselves. Id. at ¶ 18-25; Id. at ¶ 48-50 (Lanzinger, J., dissenting).
Instead, the Court reasoned that the General Assembly intended retroactive
application of these provisions since the Court had interpreted the former statute
governing sex-offender classifications, R.C. 2950.09(C)(1), as retroactive in Cook,
and none of the S.B. 5 amendments altered this interpretation. Id. at ¶ 25.
{¶38} Hudson urges this Court to follow the Ohio Supreme Court’s
retroactivity analysis in Hyle and not its retroactivity analysis in Ferguson.
Hudson’s arguments notwithstanding, R.C. 2950.07(D) is distinguishable from
R.C. 2950.031, at issue in Hyle; and therefore, Ferguson is instructive. R.C.
2950.07(D) does not merely use present and past verb tenses to describe the type
of sex offenders for whom the statute applies like R.C. 2950.031; but rather, R.C.
2950.07(D) both indirectly and directly incorporates R.C. 2950.04(A)’s duty to
register, which duty the Ohio Supreme Court already found retroactive in Cook.
{¶39} R.C. 2950.07(D) begins by stating that “[t]he duty of an offender to
register under this chapter * * *” thereby indirectly incorporating R.C.
2950.04(A). Thereafter, R.C. 2950.07(D) directly incorporates R.C. 2950.04(A)
via R.C. 2950.07(A). R.C. 2950.031, on the other hand, did not directly
incorporate the registration requirement in R.C. 2950.04(A). Furthermore, unlike
R.C. 2950.031, which was enacted in its entirety as a separate, additional
prohibition for sex offenders by S.B. 5, R.C. 2950.07(D) was enacted by H.B. 565
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as part of an already-existing statutory registration scheme. Also, unlike R.C.
2950.07(D), R.C. 2950.031 contained its own remedial mechanism. R.C.
2950.031(B). The fact that R.C. 2950.031 was enacted in its entirety by S.B. 5
and contained its own remedial mechanism without reference to another statutory
provision may very well explain why the Court in Hyle required a clear expression
of retroactive intent within the statutory provision itself.
{¶40} Like the statutory provisions at issue in Ferguson, our retroactivity
analysis of R.C. 2950.07(D) does not begin on a blank slate. 2008-Ohio-4825, at ¶
21. The General Assembly was certainly aware of the Court’s interpretation of
R.C. 2950.04(A) in Cook when it enacted R.C. 2950.07(D). Id. at ¶ 22, 25. The
registration requirement that R.C. 2950.07(D) tolls had already been declared
retroactive. Cook, 83 Ohio St.3d at 410. By directly incorporating the retroactive
registration requirement in R.C. 2950.04(A), the General Assembly sufficiently
expressed its intent to make R.C. 2950.07(D) retroactive as well. This language is
more expressive of the General Assembly’s retroactive intent than the language
contained in former R.C. 2950.081 and 2950.07(B)(1) found retroactive in
Ferguson. Accordingly, we conclude that the General Assembly intended R.C.
2950.07(D) to be applied retroactively.
{¶41} Next, we must determine whether R.C. 2950.07(D) is substantive or
remedial in nature. Consilio, 2007-Ohio-4163, at ¶ 10, citing LaSalle, 2002-Ohio-
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4009, at ¶ 14; Ferguson, 2008-Ohio-4824, at ¶ 13. The Court of Appeals for the
Second District has already determined that R.C. 2950.07(D) is remedial in nature.
State v. Hancock, 2d Dist. No. 24653, 2012-Ohio-1435, ¶ 10. In concluding that
R.C. 2950.07(D) is remedial in nature, the Court in Hancock reasoned:
Given that the ten-year registration and address verification
requirements in the “Megan’s Law” version of R.C. Chapter 2050
can be applied retroactively, Cook, supra, we conclude that the
tolling provision extending the ten-year period when an offender is
re-incarcerated is likewise remedial in nature.
Id.
{¶42} We agree with the Second District that if the registration requirement
itself is remedial, then a tolling provision that further effectuates the remedial
purpose of that requirement is also remedial in nature. In enacting Megan’s Law,
the General Assembly declared:
[s]exual predators and habitual sex offenders pose a high risk of
engaging in further offenses even after being released from
imprisonment, a prison term, or other confinement and that
protection of members of the public from sexual predators and
habitual sex offenders is a paramount governmental interest.
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R.C. 2950.02(A)(2). Consequently, the primary remedial purpose behind the sex
offender registration law was to protect the public by providing notification of
potential sex offenders living in their neighborhood. Cook, 83 Ohio St.3d 404,
416, citing former R.C. 2950.02(B). The General Assembly also provided law
enforcement with tools to help prevent sex-offender recidivism. Id. Contrary to
Hudson’s arguments, the General Assembly’s intent of protecting the public is not
served while the offender is imprisoned—the intent was to protect the public upon
the offender’s release from imprisonment when the offender is living in the
community. The tolling provision furthers this remedial purpose by providing
notification to the public when it matters most—when the sex-offender is released
from prison and living in the community. Absent the tolling provision, the public
is deprived of the safety benefit of the full ten-year registration period for sex
offenders, like Hudson, who are subsequently re-incarcerated. Furthermore, the
General Assembly’s purpose of reducing sex-offender recidivism is thwarted
absent the tolling provision. For these reasons, we conclude, like the Second
District, that R.C. 2950.07(D) is remedial in nature.
{¶43} Since R.C. 2950.07(D) is remedial in nature, it does not violate
Section 28, Article II of the Ohio Constitution, and it was properly applied to
Hudson in this case. Cook, 83 Ohio St.3d at 411, citing Van Fossen, 36 Ohio
St.3d at 107.
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{¶44} Hudson’s first assignment of error is, therefore, overruled.
Assignment of Error No. II
The trial court erred in denying Appellant’s motion to dismiss as
the tolling provision of former O.R.C. §2950.07(D) violated
Appellant’s rights to due process of law.
{¶45} In his second assignment of error, Hudson argues that R.C.
2950.07(D) violated his right to procedural due process, because he was not
provided notice that his registration duty would be extended by any time he was
incarcerated for an unrelated, non-sex crime. Hudson also argues that his only
meaningful opportunity to challenge his continued registration duty was to violate
the law, which is a denial of due process.
{¶46} As an initial matter, we note that Hudson did not raise this issue
before the trial court; instead, he focused on the retroactive application of S.B. 10,
The Adam Walsh Act (AWA), and the retroactive application of R.C. 2950.07(D)’s
tolling provision under Megan’s Law, as amended by H.B. 565. (Doc. No. 16). In
its memorandum in opposition to Hudson’s motion to dismiss, the State conceded
that the AWA could not be applied to Hudson in light of State v. Williams, 129
Ohio St.3d 344, 2011-Ohio-3374. (Doc. No. 22). Nevertheless, the State
contended that Hudson still had to comply with the 10-year registration
requirement under Megan’s Law and that Hudson’s 10-year registration period had
not expired by virtue of R.C. 2950.07(D)’s tolling provision. (Id.). In response,
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Hudson argued that, as applied to him, R.C. 2950.07(D) violated the Ex Post Facto
Clause of the U.S. Constitution and Section 28, Article II of the Ohio Constitution.
(Doc. No. 26).
{¶47} Now, on appeal Hudson raises several procedural due process
arguments. The failure to raise an issue in the lower court waives all but plain
error on appeal. State v. Lorraine, 66 Ohio St.3d 414, 416 (1993), citing State v.
Moreland, 50 Ohio St.3d 58 (1990) and State v. Broom, 40 Ohio St.3d 277 (1988).
Nevertheless, the denial of basic procedural due process amounts to plain error
under Crim.R. 52(B). Columbus v. Bickel, 77 Ohio App.3d 26, 35-36 (10th
Dist.1991). See also State v. Coe, 153 Ohio App.3d 44, 2003-Ohio-2732, ¶ 19
(4th Dist.). Consequently, we will review Hudson’s procedural due process
claims.
{¶48} The right to procedural due process is protected by the Fourteenth
Amendment to the United States Constitution and Section 16, Article I of the Ohio
Constitution. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, ¶ 6. A sex
offender must demonstrate that he was deprived of a protected liberty or property
interest as a result of the registration requirement to trigger protections under these
clauses. Id., citing Steele v. Hamilton Cty. Community Mental Health Bd., 90
Ohio St.3d 176, 181 (2000). Although due process is “‘flexible and calls for such
procedural protections as the particular situation demands,’” Mathews v. Eldridge,
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424 U.S. 319, 332, 96 S.Ct. 893 (1976), quoting Morrissey v. Brewer, 408 U.S.
471, 481, 92 S.Ct. 2593 (1972), the basic requirements of procedural due process
are notice and an opportunity to be heard. Hayden, 2002-Ohio-4160, at ¶ 6, citing
State v. Hochhausler, 76 Ohio St.3d 455, 459 (1996).
{¶49} R.C. 2950.03 provides for notice to convicted sex-offenders of their
duty to register; to provide notice of a change in their residence address or in their
school, institution of higher education, or place of employment address, as
applicable, and register the new address; and, to periodically verify their residence
address or their school, institution of higher education, or place of employment
address, as applicable. R.C. 2950.03(B).
{¶50} The record indicates that Hudson was provided with such notice on
multiple occasions, including: October 30, 1997, August 13, 2003, November 24,
2004, December 9, 2004, July 13, 2005, September 21, 2005, April 26, 2006,
September 11, 2006, May 7, 2007, August 17, 2007, September 2, 2008, February
6, 2009, August 5, 2009, May 20, 2010, and June 15, 2011. (Joint Ex. 7). The
parties also stipulated that, on June 2, 2011 upon his release from prison, Hudson
registered his sister’s address at 412 East Farming Street, Marion, Ohio as his
residence with the Marion County Sheriff’s Office. Now, on appeal Hudson
alleges that he thought his duty to register ended on October 29, 2007—yet the
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notices he received and his own actions refute that claim. Consequently, we are
not persuaded that Hudson lacked notice of his continued duty to register.
{¶51} Finally, Hudson argues that he was deprived procedural due process
because he could not challenge his continued duty to register without violating the
law. Hudson cites State v. Cowan in support of his argument. 103 Ohio St.3d
144, 2004-Ohio-4777. The classification in Cowan is strikingly different than the
classification at issue in this case. In Cowan, R.C. 955.22 empowered a deputy
dog warden, an executive officer, to classify the defendant’s dogs as “vicious
dogs” without any hearing after the defendant’s neighbor merely alleged that the
defendant’s dogs bit his wife. 2004-Ohio-4777, at ¶ 1, 11. Unlike the executive
officer’s classification in Cowan, Hudson’s sexual offender classification stemmed
from his 1996 conviction for gross sexual imposition. Consequently, unlike the
executive classification in Cowan, Hudson’s classification occurred only after he
was afforded full procedural due process; namely, a trial on the merits. Therefore,
the facts sub judice are distinguishable from the facts in Cowan.
{¶52} Moreover, we 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. Former R.C. 2950.04(A)(1) and R.C. 2950.07(B)(3);
Hayden, 2002-Ohio-4169, paragraph two of the syllabus. Hudson’s continued
obligation to register as a sexual offender per R.C. 2950.07(D) also attached as a
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matter of law. Since Hudson was not entitled to a further hearing to challenge his
initial duty to register as a sexual offender, we conclude that he was not entitled to
a further hearing to challenge his continued obligation to register per R.C.
2950.07(D) since that continued duty also attached as a matter of law and
stemmed from Hudson’s original conviction.
{¶53} Hudson’s second assignment of error is, therefore, overruled.
{¶54} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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