State v. Pettis ( 2024 )

[Cite as State v. Pettis, 2024-Ohio-574.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112629
v. :
AARON T. PETTIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 15, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-09-532459-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Aaron T. Pettis appeals the trial court’s denial of
his motion to vacate the requirement that he remain enrolled in the violent offender
database (“VOD”) established by Sierah’s Law, R.C. 2903.41 through 2903.44. He
argues that the VOD-enrollment requirements are unconstitutional and that his
failure to file a timely motion was excusable neglect; he says the Ohio Department
of Rehabilitation and Correction (“ODRC”) did not adequately inform him of the
procedural requirements for these motions.
For the reasons that follow, we affirm.
I. Factual Background and Procedural History
In December 2009, a Cuyahoga County Grand Jury indicted Pettis and
two codefendants for, among other things, aggravated murder with felony-murder
and firearm specifications. In July 2010, pursuant to a plea agreement, the state
amended the indictment as to Pettis and he pleaded guilty to one count of voluntary
manslaughter in violation of R.C. 2903.03(A). The charge carried a felony-murder
specification under R.C. 2929.04(A)(7) and a one-year firearm specification under
R.C. 2941.141(A). The state dismissed the remaining charges and specifications
through a nolle prosequi. The state described the underlying facts of the case as
follows at the change-of-plea hearing:
Your Honor, on or about November 1, 2009, this defendant was one of
three defendants that participated in the unfortunate death of the
victim, Donald R. Williams, on the date in question.
This defendant, along with two co-defendants * * * went to the
residence of the victim * * *.
***
When they went to the home, it’s the State’s understanding once the
victim came out of his home, the three defendants approached him, had
him lay down on the ground. They took his car keys and a pair of shorts
that he was wearing and as he retreated, he was shot in the back by
another co-defendant.
Your Honor, it’s the State’s understanding that relative to [Pettis’]
participation, he actually drove the victim’s car away from the scene
and upon being arrested, and they were arrested pretty quickly, within
a couple hours or days after this crime, that it was this defendant who
came forth first and basically admitted his participation in this crime
* * *.
In August 2010, the trial court sentenced Pettis to one year in prison
on the firearm specification, to be served prior, and consecutive, to nine years in
prison on the underlying felony, for an aggregate sentence of ten years in prison. On
March 20, 2019, while Pettis was incarcerated, Sierah’s Law came into effect.
Sierah’s Law created a statewide violent offender database, which
requires those convicted of certain specified offenses to enroll in a registry that will
allow law enforcement to track their whereabouts for ten years following their
release from prison. Violent offenders with VOD duties must appear in person at
the local county sheriff’s office within ten days following release from prison, or after
receiving notice at the sentencing hearing if the offender is not sentenced to prison,
to enroll in the database. R.C. 2903.43. Thereafter, the offender must re-register
annually for ten years. R.C. 2903.43.
At least as early as March 2019, the ODRC published written notices of
the VOD-enrollment requirements and the procedure for challenging enrollment;
these notices are discussed further below.
Pettis was released from prison in November 2019 and registered in
the VOD.
On February 28, 2020, Pettis filed a motion to vacate VOD
registration, arguing that (1) he was not the principal offender, (2) applying VOD
registration to him violates constitutional protections against retroactive legislation
and multiple punishment and (3) VOD registration violates the constitutional
doctrine of separation of powers. The state opposed the motion, defending the
constitutionality of the VOD, arguing that Pettis’ motion should be denied as
untimely and arguing that certain statutory factors weighed in favor of his continued
enrollment in the database.
The motion was briefed and additional discovery related to the
timeliness of the motion was exchanged, and the matter was continued as the Ohio
Supreme Court considered VOD-related assignments of error in State v. Hubbard,
Nos. 2020-0544 and 2020-0625. After the Supreme Court issued its decision in
that matter — reported at 167 Ohio St.3d 77, 2021-Ohio-3710, 189 N.E.3d 720 — the
trial court held hearings on Pettis’ motion on December 3, 2021, and February 7,
2023. At those hearings, the following facts were established.
In March 2019, an ODRC notice explaining the VOD-enrollment
requirements was posted in the library at the correctional institution where Pettis
was imprisoned. The notice informed inmates about the VOD and stated, among
other things, that “[t]o rebut the presumption of registration, prior to release, an
incarcerated offender must file a motion with the offender’s sentencing court that:
1. [a]sserts and proves, by a preponderance of the evidence, that the offender was
not the principal offender, and 2. [r]equests that the court not require the offender
to enroll in the VOD or be required to comply with any VOD duties.” Pettis testified
that he never saw this notice in the library.
In April 2019, the ODRC sent Pettis an electronic message through the
prison email system (JPAY) containing a nearly identical notice. The email was
directed to Pettis’ account but the notice was addressed to “all inmates.” Pettis
testified that he did not read that notice because it was his practice not to read emails
from the ODRC, since those emails historically “never really pertained to me * * *.”
He said he only read emails from his family members.
Pettis testified that he first saw a copy of the ODRC’s VOD notice in
his jail pod in early November 2019, “about a couple weeks” before his release. At
that time, he learned for the first time that he had to register in the VOD and “saw
that I might be exempt because I am not the principal offender.” He testified that
he did not read the sentence that stated, “To rebut the presumption of registration,
prior to release, an incarcerated offender must file a motion * * *.” He scanned over
that part of the document.
Pettis signed documents upon his release that included a copy of the
March 2019 notice regarding the VOD. Pettis testified that it was his understanding,
when he signed this notice, that he could challenge the requirement to register even
if he were released and even if he registered initially. But he admitted that he did
not read the notice closely at that time; he was focused on going home.
Pettis went to the Cuyahoga County Public Defender’s office on the
day that he was released in order to discuss challenging his VOD registration; a
receptionist told him that someone from the office would contact him later.
Sometime later, he learned that his case had been assigned to an attorney and that
the public defender’s office had filed a pleading on his behalf challenging the VOD-
registration requirement. Throughout that process, Pettis “always believed there
was a way for me not to be on the register; the [VOD].”
The trial court denied Pettis’ motion on March 28, 2023. The court
reasoned that Sierah’s Law is not prohibited, retroactive legislation or a form of
multiple punishment and does not violate the separation of powers. The court
further found that Pettis’ motion was untimely. Finally, the court stated that it
would have denied the motion even if it had been timely because it determined that
VOD registration is appropriately applied to Pettis under the facts of the case.
Pettis appealed, raising the following assignments of error for review:
First Assignment of Error
The application of VOD to Mr. Pettis violates ex post facto and
retroactive legislation prohibitions in the United States and Ohio
Constitutions, respectively.
Second Assignment of Error
Application of the VOD to Mr. Pettis violates the constitutional doctrine
of separation of powers.
Third Assignment of Error
The trial court erred when it found that Mr. Pettis forfeited his right to
challenge his VOD status because he filed his VOD challenge out of
time.
Fourth Assignment of Error
The trial court erred in concluding that Mr. Pettis constituted a threat
to public safety that required registration under VOD.
II. Law and Analysis
Pettis argues that the trial court should have vacated the requirement
that he remain enrolled in the VOD and subject to these duties because the law is
unconstitutional as applied to him. He further argues that the trial court erred when
it denied his motion as untimely, because the ODRC did not provide sufficient notice
to him that he needed to file the motion before his release. Finally, he argues that
even if the VOD were constitutional, he should not be subject to its requirements
because he was not the principal offender and because other statutory factors weigh
in favor of vacating VOD-registration requirements in his case. We address Pettis’
constitutional arguments first.
Whether a statute is unconstitutional is a question of law subject to
de novo review. Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136
N.E.3d 466, ¶ 15, citing Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-
7760, 88 N.E.3d 900, ¶ 16; State v. Beard, 8th Dist. Cuyahoga No. 109630, 2021-
Ohio-2512, ¶ 28. “[S]tatutes enjoy a strong presumption of constitutionality.” State
v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 8; see also
State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147, 128 N.E.2d 59 (1955)
(“A regularly enacted statute of Ohio is presumed constitutional and is therefore
entitled to the benefit of every presumption in favor of its constitutionality.”). Thus,
“if at all possible, statutes must be construed in conformity with the Ohio and the
United States Constitutions.” State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d
552 (1991).
A. First Assignment of Error – Retroactivity Clause
Pettis argues that the VOD statutory scheme violates Article II,
Section 28 of the Ohio Constitution, which provides that the “general assembly shall
have no power to pass retroactive laws.” The state responds that the Ohio Supreme
Court has considered this argument and decided against Pettis’ position. The state
is correct.
In State v. Hubbard, 167 Ohio St.3d 77, 2021-Ohio-3710, 189 N.E.3d
720, the Ohio Supreme Court considered “whether the retroactive application of
‘Sierah’s Law,’ R.C. 2903.41 through 2903.44, to offenders who committed their
offenses prior to the effective date of those provisions violates the Retroactivity
Clause of Article II, Section 28 of the Ohio Constitution.” Hubbard at ¶ 1 (lead
opinion). The offender in Hubbard had pleaded guilty, prior to the effective date of
Sierah’s Law, to an offense that occurred in August 2018. Id. at ¶ 6 (lead opinion).
The trial court nevertheless notified the offender that he was required to register in
the VOD. Id. The offender objected, arguing that Sierah’s Law violated the Ohio
Constitution’s Retroactivity Clause. Id. The Ohio Supreme Court accepted the
offender’s appeal to review whether the law violates the Retroactivity Clause and
whether it is unconstitutional as applied to offenses committed prior to the law’s
effective date. Id. at ¶ 8–9 (lead opinion).
After considering the arguments put forth by the parties in that case,
the Supreme Court affirmed the offender’s sentence. The lead opinion in Hubbard
garnered the support of three justices, with a fourth justice concurring in judgment
only. Nevertheless, this court has held that Hubbard “definitively” determined the
constitutional question now raised by Pettis; Hubbard stands for the holding “‘that
the application of Sierah’s Law to violent offenders who committed their offenses
prior to its effective date does not violate the Retroactivity Clause of the Ohio
Constitution.”’ State v. Wooden, 8th Dist. Cuyahoga No. 110340, 2022-Ohio-814,
¶ 25, quoting Hubbard at ¶ 45 (lead opinion); see also State v. Brown, 8th Dist.
Cuyahoga No. 109979, 2021-Ohio-4130, ¶ 28.
Moreover, in State v. Beard, 8th Dist. Cuyahoga No. 109630, 2021-
Ohio-2512 — decided prior to the Ohio Supreme Court’s decisions in Hubbard and
State v. Jarvis, 167 Ohio St.3d 118, 2021-Ohio-3712, 189 N.E.3d 754 (another case
in which a divided court held that the application of Sierah’s Law to conduct that
occurred prior to its effective date does not violate the Retroactivity Clause) — this
court rejected a similar constitutional challenge to Sierah’s Law based on the
Retroactivity Clause. The court found that the VOD duties were “less onerous” than
those applicable to sex offenders under the Adam Walsh Act and that the VOD was
similar to the arson offender registry, “which has been constitutionally upheld as a
remedial statute.” Beard at ¶ 43–46, 49, citing State v. Caldwell, 2014-Ohio-3566,
18 N.E.3d 467 (1st Dist.), and State v. Reed, 2014-Ohio-5463, 25 N.E.3d 480 (11th
Dist.). The court concluded that “the registration requirements under Sierah’s Law
are not so burdensome as to amount to a form of punishment that may not be
imposed retroactively” and that retroactive application of those requirements to an
offender who had committed a violent offense prior to the effective date of the VOD
statutes was, therefore, constitutional. Beard at ¶ 43, 49; see also State v. Baber,
2021-Ohio-1506, 171 N.E.3d 1257, ¶ 48 (1st Dist.); State v. Rike, 1st Dist. Hamilton
No. C-190401, 2020-Ohio-4690, ¶ 62; State v. Garst, 2d Dist. Clark No. 2020-CA-
51, 2021-Ohio-1516, ¶ 23; State v. Williams, 2d Dist. Montgomery No. 28648, 2021-
Ohio-1340, ¶ 144; State v. Misch, 2021-Ohio-756, 169 N.E.3d 46, ¶ 14 (6th Dist.);
State v. Lamb, 6th Dist. Lucas No. L-19-1177, 2021-Ohio-87, ¶ 58; State v. Morgan,
2020-Ohio-3955, 156 N.E.3d 989, ¶ 35 (9th Dist.).
Pettis acknowledges these authorities but advocates, without
significant analysis distinguishing them, that this court should reach a different
outcome here. Pettis’ argument does not convince us to depart from this court’s
precedent acknowledging the binding effect of Hubbard and determining that
retroactive application of the VOD requirements to an offender who committed a
qualifying violent offense prior to the effective date of Sierah’s Law does not violate
Ohio’s Retroactivity Clause.
We, therefore, overrule Pettis’ first assignment of error.
B. Second Assignment of Error – Separation of Powers
Pettis next argues that Sierah’s Law violates the constitutional
separation-of-powers doctrine.
Separation of powers “represents the constitutional diffusion of
power within our tripartite government.” Norwood v. Horney, 110 Ohio St.3d 353,
2006-Ohio-3799, 853 N.E.2d 1115, ¶ 114. Although the Ohio Constitution does not
contain explicit language establishing the separation of powers, the doctrine is
“implicitly embedded in the entire framework of those sections * * * that define the
substance and scope of powers granted to the three branches of state government.”
S. Euclid v. Jemison, 28 Ohio St.3d 157, 158–159, 503 N.E.2d 136 (1986); see also
State v. Sterling, 113 Ohio St.3d 255, 2007-Ohio-1790, 864 N.E.2d 630, ¶ 22.
Pettis essentially argues that the VOD statutory scheme has the effect
of “reopening” the trial court’s sentencing order to insert a new punishment — VOD
registration — by legislative fiat. His argument relies solely on the Ohio Supreme
Court’s decision in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753.
This court has previously considered and rejected this argument.
Brown at ¶ 32–44. As this court said in Brown:
The situation in Bodyke is not the situation here. Sierah’s Law does not
involve the reclassification of offenders who were previously classified
by judges. It does not vest the executive branch with authority to review
judicial decisions. It does not direct another branch of government to
alter prior adjudications by the judiciary or otherwise “interfere” with
the judiciary’s exercise of judicial power.
***
The VOD duties established under Sierah’s Law are not part of an
offender’s sentence. Nothing in the VOD “reopens,” revises or
otherwise modifies [the offender’s] final judgment of conviction.
Brown at ¶ 42.
Pettis’ argument does not convince us to depart from this court’s
precedent on the issue. We, therefore, overrule Pettis’ second assignment of error.
Having rejected Pettis’ constitutional challenges to the VOD-
enrollment requirements, we will now consider whether the trial court erred in
finding that his motion to vacate those requirements was untimely.
C. Third Assignment of Error – Timeliness
Ohio’s VOD statutes allow a person classified as a violent offender to
file a motion seeking to rebut the presumption that the person must enroll in the
database. See generally R.C. 2903.42. R.C. 2903.42(A)(2)(b), which is applicable
to Pettis, states as follows, in relevant part:
A violent offender who wishes to rebut the presumption [of enrollment]
shall file a motion in accordance with [the following] * * *:
[T]he offender shall file the motion with the court that sentenced the
offender for the offense that classifies the person a violent offender.
The motion shall assert that the offender was not the principal offender
in the commission of that offense and request that the court not require
the offender to enroll in the violent offender database and not have all
VOD duties with respect to that offense. The motion shall be filed prior
to the time of the person’s release from confinement in the jail,
workhouse, state correctional institution, or other institution under
the prison term, term of imprisonment, or other term of confinement
for the offense * * *.
(Emphasis added.) R.C. 2903.42(A)(2)(b).
Pettis acknowledges that he filed his motion months after his release
from prison, but he contends that under the circumstances he did not forfeit his right
to challenge VOD registration. He argues that (1) the institution where he was
incarcerated failed to adequately inform him that he had to file his motion before
his release and (2) he acted diligently to file his motion as soon as possible after his
release.
Violent offenders subject to VOD enrollment must be informed of the
presumption that they must enroll and that they have a right to file a motion to rebut
that presumption. R.C. 2903.42(A)(1). They must also be informed “of the
procedure and criteria for rebutting the presumption, and of the effect of a rebuttal
and the post-rebuttal hearing procedures and possible outcome.” Id. For offenders
like Pettis who were incarcerated for an enumerated offense when the VOD came
into effect, the onus for providing written notice of those things falls on “the official
in charge of the jail, workhouse, state correctional institution, or other institution in
which the offender is” confined. R.C. 2903.42(A)(1)(b).
Here, the ODRC drafted a written notice directed to inmates
regarding the VOD; it sent the notice to library staff at the institution where Pettis
was incarcerated in March 2019. The ODRC instructed the library staff to post the
notice in the institution’s library and to make a copy of the relevant legislation
available to inmates upon request. The institution took those steps. It seems as
though the institution also posted the notice in other common areas, since Pettis
testified that he saw the notice in his living quarters. Additionally, the institution
emailed the notice directly to Pettis through JPAY in April 2019. And he was
provided another copy personally on the day he was released.
The ODRC’s notice also informed offenders that they could read the
new law by contacting the institution’s library and encouraged offenders to “direct
any questions to your sentencing court or your attorney.” A librarian at the
institution where Pettis was incarcerated averred that the institution did, in fact,
make a copy of S.B. 231 available for inmates upon request.
Pettis asserts that this notice was insufficient. First, he argues that
the institution should have informed him, in person and reasonably in advance of
his release, that the presumption of enrollment applied to him and that if he wanted
to rebut the presumption he would have to file a motion before his release. Second,
he argues that even if posted and emailed notice is sufficient in general, this
particular notice did not clearly communicate that an offender’s motion has to be
made prior to their release. The latter argument comes down to sentence structure.
The ODRC’s notice read as follows:
To rebut the presumption of registration, prior to release, an
incarcerated offender must file a motion with the offender’s sentencing
court * * *.
Pettis asserts that the average person (and certainly the average
imprisoned offender) would read this sentence to mean only, “If an offender wishes
to rebut the presumption of registration prior to their release, the offender must file
a motion with the offender’s sentencing court.” Under this reading, the notice is
silent about how an offender could rebut the presumption after their release, if they
could do so at all. Pettis argues that the sentence should have been phrased like this:
“To rebut the presumption of registration, an incarcerated offender must file a
motion with the sentencing court prior to release.”
Pettis further suggests that the ambiguity in that notice, along with
the way the notice was provided to inmates, denied him due process of law. He asks
this court to apply “principles of equitable tolling and excusable neglect,” which he
says excuse him from the timing requirement of R.C. 2903.42(A)(2)(b).
The state defends the ODRC’s notice as “reasonably calculated to
apprise Pettis of the requirements of Sierah’s Law.” It rejects the suggestion that the
ODRC was required to provide individual inmates in-person notice of the VOD
presumption and their right to file a motion to rebut it. It states, pithily, that the
“ODRC can provide written information to inmates but it cannot make them read
it.”
After careful consideration, we agree that the trial court properly
denied Pettis’ motion as untimely. This court has previously stated that notice under
R.C. 2903.42(A)(1) “must contain sufficient particularity to afford a person a
meaningful opportunity to defend his or her rights in a matter.” State v. Walker,
2021-Ohio-580, 168 N.E.3d 628, ¶ 39 (8th Dist.). Here, the ODRC informed Pettis
in writing — by notices posted in the library and in his living quarters and also
individually by electronic message — about the VOD-enrollment requirements and
the procedure for making a motion to rebut the presumption. We need not dwell on
Pettis’ argument that the institution’s means of communicating this notice was
insufficient, because Pettis himself testified that he saw the notice and understood
that it applied to him, that he would have to enroll and that there was a possibility
that he could be excused from enrolling. Stated differently, we need not decide in
this appeal whether the ODRC’s notice procedures were adequate to give an inmate
constructive notice because Pettis’ testimony shows that his institution gave him
actual notice of the VOD-enrollment requirements at least two weeks before his
release.
His argument regarding the notice’s phrasing is similarly not well-
taken. We certainly agree that the ODRC’s notice would have been be clearer if the
sentence on timing were phrased in the way Pettis suggests, something like:
To rebut the presumption of registration, an incarcerated offender
must file a motion with the offender’s sentencing court. The motion
must be filed prior to the offender’s release and must: * * *
This sentence is reasonably calculated to inform inmates of the
deadline for filing these motions. Its phrasing is not convoluted or misleading.
While the possibility for a miscue exists, it is unreasonable to expect that a reader
would persist in the erroneous assumption after reading the notice as a whole. That
is to say, it is unreasonable that a person would misunderstand this sentence in the
way Pettis suggests when the notice is otherwise silent about whether and how an
offender can seek to rebut the presumption after release.
Moreover, Pettis does not actually claim that he was misled by this
sentence. To the contrary, he admits that he did not read that section of the notice
at all. While he understood that the notice applied to him and that it might be
possible to be excused from VOD registration, he skipped over the information
about how he should go about getting excused. He did not request a copy of the
relevant legislation, which was available in the library. He did not contact the
sentencing court or an attorney prior to his release. Under these circumstances, it
is difficult to see his belief that he could file a motion after his release as anything
but a hopeful assumption.
The burden of informing Pettis of the relevant procedures for filing a
motion fell on the institution housing him. The ultimate question is whether the
institution adequately provided the information required by R.C. 2903.42(A)(2)(b)
to Pettis. It did.
Reading the ODRC’s notice in its entirety and considering that the
institution made the relevant legislation available for review upon request, we find
that the ODRC’s notice adequately informed Pettis of the presumption established
under the VOD statutes, of his right to file a motion to rebut the presumption, of the
procedure and criteria for rebutting the presumption, and of the effect of a rebuttal
and the post-rebuttal hearing procedures and possible outcome. In other words, we
find that the institution complied with R.C. 2903.42(A)(1) as to Pettis and conclude
that its notice contained sufficient particularity to afford Pettis a meaningful
opportunity to defend his rights in this matter. See State v. Walker, 2021-Ohio-580,
168 N.E.3d 628, ¶ 39 (8th Dist.).
Because Pettis failed to comply with R.C. 2903.42(A)(2)(b) when he
filed his motion after being released, it was not error for the trial court to deny his
motion to vacate his VOD enrollment and related obligations.
We, therefore, overrule Pettis’ third assignment of error.
D. Fourth Assignment of Error – Statutory VOD Factors
Because we have determined that the trial court correctly denied
Pettis’ motion as untimely, we may affirm the trial court’s order on that basis alone.
We, therefore, disregard Pettis’ fourth assignment of error, which focused on the
trial court’s application of the statutory factors a court must consider when weighing
a timely filed motion to vacate VOD enrollment obligations.
III. Conclusion
Having overruled Pettis’ first, second, and third assignments of error,
and having disregarded his fourth, we affirm.
The court finds there were reasonable grounds for this appeal.
It is ordered that the appellee recover from the appellant the costs herein
taxed.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas 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.
_________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR