State v. Galloway , 2015 Ohio 4949 ( 2015 )

[Cite as State v. Galloway, 2015-Ohio-4949.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 15CAA040029
:
BRANDON D. GALLOWAY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Case No. 14CR-I-11-
0530 B
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 23, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CAROL HAMILTON O'BRIEN DAVID H. BIRCH
DELAWARE CO. PROSECUTOR 286 South Liberty St.
ERIC C. PENKAL Powell, OH 43065
140 North Sandusky St.
Delaware, OH 43015
Delaware County, Case No. 15CAA040029 2
Delaney, J.
{¶1} Appellant Brandon D. Galloway appeals from the March 24, 2015
Judgment Entry on Sentence of the Delaware County Court of Common Pleas.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The facts underlying appellant's criminal conviction are not in the record
before us, other than agreement of the parties at the sentencing hearing that the crime
giving rise to this case occurred in 2007.
{¶3} On November 26, 2014, appellant and co-defendant Jackson O. Conn
were charged by indictment with one count of aggravated arson pursuant to R.C.
2909.02(A)(2), a felony of the second degree. Appellant initially entered a plea of not
guilty.
{¶4} On February 13, 2015, the parties reached a negotiated plea agreement
pursuant to Crim.R. 11(F) stipulating appellant would plead to a lesser offense of
attempted arson pursuant to R.C. 2923.02(A) and 2909.03(A)(4), a felony of the third
degree. Appellee recommended a pre-sentence investigation (P.S.I.) and appellant
agreed to pay restitution in an amount to be determined. Appellant then withdrew his
plea of not guilty and entered a plea of guilty to the lesser-included offense.
{¶5} In a Judgment Entry dated February 17, 2015, the trial court found
appellant guilty of attempted arson and referred him to Adult Court Services for
preparation of the P.S.I.
{¶6} Appellant came before the court for sentencing on March 20, 2015 and
was sentenced to a term of community control not to exceed three years.
Delaware County, Case No. 15CAA040029 3
{¶7} Relevant here, dated March 24, 2015, appellant signed and
acknowledged a form entitled "Notice of Duties to Register as an Arson Offender (ORC
2909.14)." The Notice states appellant must register with the sheriff of any county in
which he resides, annually, for life. Failure to register or to verify his address upon
request will result in criminal prosecution.
{¶8} Appellant objected to the registration requirement at sentencing.
{¶9} Appellant now appeals from the judgment entry of sentence, including the
notice of the requirement to register as an arson offender.
{¶10} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶11} "THE TRIAL COURT ERRED BY REQUIRING THE APPELLANT TO
REGISTER AS AN ARSONIST IN VIOLATION OF THE UNITED STATES
CONSTITUTION ARTICLE I, SECTION 10, AND THE OHIO CONSTITUTION
ARTICLE II, SECTION 28."
ANALYSIS
{¶12} Appellant argues the application of the arson offender registry1 to him
violates the Ex Post Facto clause of the United States Constitution and the retroactivity
clause of the Ohio constitution. We disagree.
Appellant is an "arson offender" within the meaning of the arson offender
registration requirements.
{¶13} Effective July 1, 2013, Ohio became one of three states with an arson
offender registry.2 Ohio's arson offender registry is found in R.C. 2909.13, 2909.14, and
2909.15. These statutes became effective on July 1, 2013.
1 R.C. 2909.13, 2909.14, and 2909.15 will be referred to collectively throughout as the
"arson offender registry" or the "arson offender registry statutes."
Delaware County, Case No. 15CAA040029 4
{¶14} Relevant to appellant, an "arson offender" is defined as "a person who on
or after the effective date of this section is convicted of or pleads guilty to an arson-
related offense." R.C. 2909.13(B)(1). An "arson-related offense" includes attempted
arson pursuant to R.C. 2923.02(A) and 2909.03(A)(4). R.C. 2909.13(A)(2). Pursuant to
R.C. 2909.14(A)(2), if an arson offender is sentenced after July 1, 2013 and is not
sentenced to a prison term or other term of confinement, "the judge shall provide the
notice to the arson offender at the time of the arson offender's sentencing." R.C.
2909.14(A)(2). This notice provides that the arson offender shall register personally
with the sheriff of the county in which the arson offender resides within ten days from
the sentencing hearing. R.C. 2909.15(A)(2). The arson offender must provide the
information requested upon a registration form prescribed by the attorney general,
annually, in person, for life.3 R.C. 2909.15(C) and (D). The initial registration requires
payment of a fee of $50 and annual registration thereafter requires payment of a fee of
$25. R.C. 2909.15(F).4 Failure to register or to re-register as required is a felony of the
fifth degree. R.C. 2909.15(H).
{¶15} Appellant thus falls squarely within the statutory definition of an arson
offender who is required to register as prescribed. He argues, though, that because he
committed the arson-related offense prior to July 1, 2013, application of the registration
2California and Louisiana also have arson offender registries. Montana's registry of
violent offenders includes arson offenders. Franko, Ohio starts arsonist registry,
Columbus Dispatch (Jan. 22, 2013).
3R.C. 2909.15(D)(2)(b) permits the trial court to limit the arson offender's duty to register
to a period not less than ten years if the judge receives a request from the prosecutor
and investigating law enforcement agency to consider limiting the registration period.
There is no such request in the record of the instant case.
4The fees are collected by the sheriff's office where the offender registers and are sent
to the attorney general to be used for maintenance of the arson offender registry
database. R.C. 2909.15(F).
Delaware County, Case No. 15CAA040029 5
statutes to him violates the Ex Post Facto Clause of the United States Constitution and
the retroactivity prohibition of the Ohio constitution.
{¶16} We are not the first Ohio appellate court to examine these issues. Three
districts have addressed the arson offender registry. In State v. Caldwell, the First
District Court of Appeals found the arson offender registration requirement does not
violate the Ohio Constitution's prohibition against retroactive laws as applied to an
offender who committed an arson-related offense on June 22, 2013 and was sentenced
on November 7, 2013. 1st District Hamilton No. C-130812, 2014-Ohio-3566, 18 N.E.3d
467. In State v. Reed, the Eleventh District found the arson offender registration
requirements do not violate the Ex Post Facto Clause and do not violate the prohibition
against retroactive laws as applied to an arson offender who committed the offense on
September 4, 2012, was ordered apprehended after he failed to appear for trial, and
was ultimately convicted on November 7, 2013. 11th Dist. Lake No. 2013-L-130, 2014-
Ohio-5463, 25 N.E.3d 480. In State v. Mullins, the Tenth District did not reach the issue
of retroactivity, finding instead the defendant was not an "arson offender" because he
was not "convicted" on the effective date of the statute. 10th Dist. Franklin No. 14AP-
480, 2015-Ohio-3250. The Mullins court interprets "convicted" to include having been
found guilty and sentenced prior to July 1, 2013; the Mullins defendant had been found
guilty but not yet sentenced on the effective date of the statute. Id. at ¶ 11.
{¶17} In the instant case, appellant acknowledges Caldwell and Reed but
argues the constitutional analysis in each case is flawed. Both cases examine the
arson registry as analogized to registration requirements for sex offenders. Appellant
argues the rationales underlying Caldwell and Reed have been superseded by
Delaware County, Case No. 15CAA040029 6
subsequent court decisions finding sex offender registration requirements to be
unconstitutional.
{¶18} We first note statutes enjoy a strong presumption of constitutionality. “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-Ohio-291, 700 N.E.2d 570, citing State ex rel. Dickman v.
Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.
We turn now to our analysis of whether requiring appellant to register as an arson
offender violates the Ex Post Facto Clause or the prohibition against retroactive laws.
The arson offender registry does not violate the Ex Post Facto Clause.
{¶19} Section 10, Article I of the United States Constitution, the Ex Post Facto
Clause, prohibits any new punitive measure that creates a material disadvantage to a
defendant when applied to a crime that has already been committed. See, 29A Ohio
Jurisprudence 3d, Criminal Law: Substantive Principles and Offenses, Section 69
(2015). The Clause bars application of any law inflicting a greater punishment for a
crime than the law attached to the crime when it was committed. Id. Retroactive
sentencing changes are impermissibly ex post facto if they subject a defendant to a
more severe sentence than was available at the time of the offense. Id.{¶20} The Ex Post Facto Clause applies only to criminal statutes. “* * * [T]he
constitutional prohibition on ex post facto laws applies only to penal statutes which
disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41,
110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). In other words, the Ex Post Facto Clause only
Delaware County, Case No. 15CAA040029 7
prohibits retroactive measures that are considered criminal punishments, rather than
those that are merely civil regulations. Platt, Gangsters to Greyhounds: The Past,
Present, & Future of Offender Registration, 37 N.Y.U. Rev. L. & Soc. Change 727, 767-
70 (2013). The threshold issue of the Ex Post Facto analysis is whether the law is
penal or remedial. In determining whether a law is punitive, the court will first look to its
stated purpose. If it finds that the legislature expressly or impliedly intended the law to
serve as a punishment, this ends the inquiry and the court will not examine the law's
effect. Id. If, however, the Act's stated purpose is determined to be regulatory, the
reviewing court will next examine whether the statute is “so punitive either in purpose or
effect as to negate [the State's] intention to deem it ‘civil.”’ Id. The relevant factors are
"whether, in its necessary operation, the regulatory scheme: has been regarded in our
history and traditions as a punishment; imposes an affirmative disability or restraint;
promotes the traditional aims of punishment; has a rational connection to a non-punitive
purpose; or is excessive with respect to this purpose." Id., citing Smith v. Doe, 538 U.S.
84, 97, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) and Kennedy v. Mendoza–Martinez,
372 U.S. 144, 168–169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
{¶21} The Ohio Supreme Court has applied an “intent-effects test” to determine
whether a law is civil or criminal for purposes of Ex Post Facto analysis. See, State v.
Cook, 83 Ohio St.3d 404, 415, 1998-Ohio-291, 700 N.E.2d 570. The Court first
considers whether the legislature intended the law to be remedial (and therefore civil) or
penal (and therefore criminal). State v. Williams, 128 Ohio St.3d 65, 2010-Ohio-2453,
93 N.E.2d 770, ¶ 22. If the intent was for the law to be penal, the inquiry ends; if the
intent was for the law to be remedial, the Court must look to the law’s specific effects.
Delaware County, Case No. 15CAA040029 8
Id. A purportedly remedial statute may be deemed punitive and criminal if its effects
“negate a remedial intention.” Id., citing Cook, supra, 83 Ohio St.3d at 418.
{¶22} The analysis of a law's effects is inherently subjective and whether a law’s
effects are remedial or penal is a “matter of degree.” The Ohio Supreme Court upheld
Megan's Law in Cook because, upon applying the intent-effects test, the statutes were
remedial in intent and not so punitive as to violate the Ex Post Facto Clause:
There is no absolute test to determine whether a retroactive
statute is so punitive as to violate the constitutional prohibition
against ex post facto laws; such a determination is a “matter of
degree.” See Morales, 514 U.S. at 509, 115 S.Ct. at 1603, 131
L.Ed.2d at 597. However, the court in Kennedy v. Mendoza–
Martinez, [372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)],
fashioned useful guideposts for determining whether a statute is
punitive. These guideposts include “[w]hether the sanction involves
an affirmative disability or restraint, whether it has historically been
regarded as a punishment, whether it comes into play only on a
finding of scienter, whether its operation will promote the traditional
aims of punishment—retribution and deterrence, whether the
behavior to which it applies is already a crime, whether an
alternative purpose to which it may rationally be connected is
assignable for it, and whether it appears excessive in relation to the
alternative purpose assigned * * * .” (Footnotes omitted.) Id., 372
U.S. at 168–169, 83 S.Ct. at 567–568, 9 L.Ed.2d at 661.
Delaware County, Case No. 15CAA040029 9
State v. Cook, 83 Ohio St.3d 404, 418, 1998-Ohio-291, 700 N.E.2d
570.
{¶23} The arson offender registry is intended to be remedial, and its effects have
been held to be remedial. In Reed, the Eleventh District found the legislature intended
the arson offender registry to be civil in nature and not punitive. Reed, supra, 2014-
Ohio-5463 at ¶ 80. Applying the "intent-effects" test, the court further found the effects
upon an offender is a "de minimus (sic) administrative requirement." Id., 2014-Ohio-
5463 at ¶ 83. Therefore, the court concluded, the arson offender registry does not
violate the Ex Post Facto Clause. Id.
{¶24} Appellant argues the rationale underlying Reed, which relied heavily upon
Cook, supra, is flawed because later court decisions have found the sex offender
registration requirements to be punitive and thus impermissibly Ex Post Facto. In Cook,
the Ohio Supreme Court found that pre-S.B.10 sex offender registration requirements
[Megan's Law] "serve[ ] the solely remedial purpose of protecting the public;" there is
"no clear proof [the law] is punitive in its effect;" and "notification requirements may be a
detriment to registrants, but the sting of public censure does not convert a remedial
statute into a punitive one." Cook, 83 Ohio St.3d at 423. Appellant relies upon a case
from the Eleventh District, State v. Strickland, which found the sex offender registration
requirements to be punitive. 11th Dist. Lake No. 2008-L-034, 2009-Ohio-5424, ¶ 48.
Strickland addressed sex offender registration requirements post-S.B.10, which differed
significantly from those examined in Cook. Most troubling to the Strickland court was
the creation of a public database:
Delaware County, Case No. 15CAA040029 10
While the statute at issue in Cook restricted the access of an
offender's information to “those persons necessary in order to
protect the public[,]” Senate Bill 10 requires the offender's
information to be open to public inspection and to be included in the
internet sex offender and child-victim offender database. R.C.
2950.081. Not only does the public have unfettered access to an
offender's personal information but, under Senate Bill 10, an
offender has a legal duty to provide more information than was
required under former R.C. Chapter 2950.
State v. Strickland, 11th Dist. Lake No. 2008-L-04, 2009-Ohio-
5424, ¶ 25, aff'd on other grounds sub nom. In re Sexual-Offender
Reclassification Cases, 126 Ohio St.3d 322, 2010-Ohio-3753, 933
N.E.2d 801, ¶ 25, order vacated in part on reconsideration sub
nom. State v. Hitchcock, 127 Ohio St.3d 1201, 2010-Ohio-4980,
936 N.E.2d 45, ¶ 25.
{¶25} Comparing post-S.B.10 sex offender registration requirements to the
arson offender registration requirements is not a perfect analogy. The schemes are
similar in some respects but significantly different in others. Of consequence to us is
the question of public access: the arson offender registry is not a public record and is
not accessible to the general public. Any individual can access the sex offender
registry. The arson offender registry, though, exists as a tool created for, maintained
by, and available only to arson investigators and law enforcement. R.C. 2909.15(E)(2).
Delaware County, Case No. 15CAA040029 11
The arson offender registry thus by design is a regulatory scheme with a rational
connection to a non-punitive purpose.
{¶26} We further agree with Reed that the arson offender registry is not
“excessive with respect to this purpose.” See Reed, 2014-Ohio-5463 at ¶ 83. The
offender is required to register only in his or her county of residence. The relatively
nominal initial registration fee and subsequent annual fees cover the costs of
maintaining the database. Appellant points out that failure to register as required is a
felony of the fifth degree, but we find this is not dispositive of the penal vs. remedial
issue. The criminal penalty lends enforceability to the registration requirements yet, as
Caldwell points out, violation thereof is “a low-level felony that carries a presumption of
probation.” Caldwell, supra, 2014-Ohio-3566 at ¶ 34; R.C. 2909.15(H).
{¶27} In conclusion, our analysis brings us to the same conclusion as that
reached in Reed: the arson offender registry is remedial and does not violate the Ex
Post Facto Clause of the U.S. Constitution. Reed, 2014-Ohio-5463 at ¶ 83.
The arson offender registry is not impermissibly retroactive.
{¶28} The Ohio Constitution prohibits retroactive legislation and the Ohio
Supreme Court has articulated a two-part framework for determining whether a statute
is impermissibly retroactive under Section 28, Article II.
{¶29} Because R.C. 1.48 establishes a presumption that statutes operate
prospectively only, “[t]he issue of whether a statute may constitutionally be applied
retrospectively does not arise unless there has been a prior determination that the
General Assembly specified that the statute so apply.” Van Fossen v. Babcock & Wilcox
Co., 36 Ohio St.3d 100, 105, 522 N.E.2d 489 (1988), paragraph one of the syllabus. If
Delaware County, Case No. 15CAA040029 12
there is no “‘clear indication of retroactive application, then the statute may only apply to
cases which arise subsequent to its enactment.’ ” Id. at 106, quoting Kiser v. Coleman,
28 Ohio St.3d 259, 262, 503 N.E.2d 753 (1986).
{¶30} If we find a “clearly expressed legislative intent” that a statute apply
retroactively, we proceed to the second step and analyze whether the challenged
statute is substantive or remedial. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059,
775 N.E.2d 829, ¶ 10, citing Cook, 83 Ohio St.3d at 410; see, also, Van Fossen, supra,
36 Ohio St.3d 100, at paragraph two of the syllabus.
{¶31} Our first question is thus whether the General Assembly has specified that
the arson offender registry applies retroactively. Van Fossen, 36 Ohio St.3d at 106. It is
evident from the definition of "arson offender" that the statute is intended to apply
retroactively, i.e., to conduct committed before its enactment. See, Caldwell, 2014-
Ohio-3566 at ¶ 20. Such is the procedural posture of appellant: he committed the
offense in 2007 but was not convicted until after the effective date of the arson registry.
R.C. 2909.13(B)(1).
{¶32} We turn next to the question whether the arson offender registry is
substantive or remedial. Specifically, does the law take away or impair vested rights
acquired under existing laws, or create a new obligation, impose a new duty, or attach a
new disability, in respect to transactions or considerations already past? Van Fossen,
36 Ohio St.3d at 106. If so, the law is "substantive" and must be deemed impermissibly
retrospective or retroactive. Id., Cincinnati v. Seasongood, 46 Ohio St. 296, 303, 21
N.E. 630 (1889).
Delaware County, Case No. 15CAA040029 13
{¶33} A remedial law, on the other hand, "is not within the mischiefs against
which [Section 28, Article II] * * * was intended to guard." Van Fossen, 36 Ohio St.3d
at 106. Remedial laws are those affecting only the remedy provided, including "laws
which merely substitute a new or more appropriate remedy for the enforcement of an
existing right." Id. Such laws may have "the occasional substantive effect," but "it is yet
generally true that laws which relate to procedures are ordinarily remedial in nature * * *
* including rules of practice, courses of procedure and methods of review, * * * * but not
the rights themselves." Id. at 108. The key issue in the instant case with regard to
retroactivity is whether the arson registry scheme is substantive or remedial. "While we
admit that the line between substantive and remedial may be difficult to ascertain, these
terms, as applied, provide 'readily distinguishable contours.'" Id. at paragraph three of
the syllabus.
{¶34} We are persuaded by the thorough analysis of Caldwell concluding that
although the arson offender registry imposes new duties and burdens on arson
offenders, those burdens are not substantive in nature. Caldwell, supra, 2014-Ohio-
3566 at ¶ 30. Appellant’s argument does not substantively address Caldwell, which
finds that even under the post-S.B.10 Williams analysis, the arson offender registry
statues are remedial and not punitive because they are overall less onerous than sex
offender registration requirements:
Nonetheless, the arson-offender registration statutes differ
from the sex-offender provisions in significant ways. Sex offenders
must register in potentially three different counties—those in which
they reside, work, and attend school—and some must register as
Delaware County, Case No. 15CAA040029 14
frequently as 90 *476 days. Williams at ¶ 13. In contrast, arson
offenders need only register annually in the county in which they
reside. The Williams court emphasized the stigma that follows from
an offender's placement on the public sex-offender registry. Id.Conversely, the arson-offender registry is visible only to certain law-
enforcement personnel. The sex-offender statutes impose stringent
restrictions on where the offender is permitted to reside, whereas
arson offenders are not subject to any residential restrictions. Id.And while arson-registry violations may subject the offender to later
prosecution, we think it notable that the failure to register is a low-
level felony that carries a presumption of probation. R.C.
2909.15(H). This is markedly different from the failure of a sex
offender to register, which constitutes a felony of the same degree
as that of the underlying conviction. See R.C. 2950.99. For
example, if a sex offender who committed a first-degree felony sex
offense fails to register, that failure to register constitutes another
first-degree felony with a potential punishment of up to 11 years in
prison. R.C. 2950.99(A)(1)(a) and 2929.14(A)(1). In view of these
considerable differences, we cannot say that the arson-offender
registration requirements are so punitive that they impose a new
burden in the constitutional sense.
State v. Caldwell, 2014-Ohio-3566, 18 N.E.3d 467, 475-76, ¶ 34
(1st Dist.)
Delaware County, Case No. 15CAA040029 15
{¶35} We are persuaded that the arson offender registration requirements are
remedial and not punitive. We find especially pertinent the fact that registration is
limited to the county in which the offender resides and the database of arson offenders
is available only to investigators and law enforcement. The arson offender registry is
not impermissibly retroactive.
{¶36} We conclude by framing the constitutional analyses within the facts of this
case: appellant committed attempted arson in 2007. At that time, the arson offender
registry did not exist. However, “[e]xcept with regard to constitutional protections
against ex post facto laws * * *, felons have no reasonable right to expect that their
conduct will never thereafter be made the subject of legislation.” Caldwell, 2014-Ohio-
3566 at ¶ 22, citing Cook at 412, internal citation omitted. Thus, appellant is not a
subject of the constitutional infirmities the Ex Post Facto Clause and retroactivity
prohibition guard against. We agree, therefore, that “[b]ecause appellant had no
expectation of finality with regard to any duties that may or may not have attached
following his conviction, he does not have a substantive right in this regard; the [arson
offender registry] is remedial in nature, and the General Assembly may retroactively
impose its provisions without running afoul of the Ohio Constitution.”Caldwell, 2014-
Ohio-3566 at ¶ 35.
{¶37} The trial court did not err in notifying appellant of his duty to register as an
arson offender and his sole assignment of error is overruled.
Delaware County, Case No. 15CAA040029 16
CONCLUSION
{¶38} Appellant's sole assignment of error is overruled and the judgment of the
Delaware County Court of Common Pleas is affirmed.
By: Delaney, J. and
Farmer, P.J.
Baldwin, J., concur.