State ex rel. Grant v. Collins (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Grant v. Collins, Slip Opinion No. 2018-Ohio-4281.]
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SLIP OPINION NO. 2018-OHIO-4281THE STATE EX REL. GRANT, APPELLANT, v. COLLINS, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Grant v. Collins, Slip Opinion No.
2018-Ohio-4281.]
Prohibition—Megan’s Law provisions remain in effect for those who committed
their offenses before enactment of the Adam Walsh Act—Judgment
dismissing writ action affirmed.
(No. 2017-0686—Submitted February 13, 2018—Decided October 24, 2018.)
APPEAL from the Court of Appeals for Lake County, No. 2016-L-106,
2017-Ohio-1338.
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KENNEDY, J.
{¶ 1} Scott A. Grant appeals from a judgment of the Eleventh District Court
of Appeals dismissing his complaint for a writ of prohibition to prevent Judge
Richard L. Collins Jr. from proceeding with a hearing to determine whether Grant
should be designated a sexual predator pursuant to Megan’s Law. Grant’s
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complaint alleged that since the General Assembly enacted 2007 Am.Sub.S.B. No.
10, the Adam Walsh Act (“AWA”), Megan’s Law has been repealed and cannot be
applied to him. Our caselaw, however, holds that when a new law cannot be applied
retroactively, the legislature’s repeal of the former version of that law is a nullity.
For this reason, our holding in 2011 that the retroactive application of the AWA is
unconstitutional means that Megan’s Law continues to apply to offenders convicted
before 2008, including Grant. Consequently, Judge Collins does not patently and
unambiguously lack jurisdiction to conduct a sexual-predator adjudication hearing
relating to Grant’s 1986 convictions for kidnapping and involuntary manslaughter,
and Grant has an adequate remedy in the ordinary course of law to challenge Judge
Collins’s exercise of jurisdiction. We therefore affirm the judgment of the Eleventh
District Court of Appeals dismissing Grant’s prohibition action.
Facts and Procedural Background
{¶ 2} In September 1985, a grand jury indicted Grant on one count each of
aggravated murder, kidnapping, and rape for the killing of a 17-year-old female.
State v. Grant, 11th Dist. Lake No. 11-252, 1987 WL 26720, *1. After the trial
court dismissed the rape count at the close of the state’s case-in-chief, the jury found
Grant guilty of kidnapping and the lesser-included-offense of involuntary
manslaughter, and the court imposed an aggregate sentence of 8 to 25 years in
prison. Id. Grant remains in prison.
{¶ 3} On August 24, 2016, Judge Collins scheduled a sexual-offender-
classification hearing to determine whether Grant should be classified as a sexual
predator pursuant to Megan’s Law.
{¶ 4} Grant petitioned the Eleventh District Court of Appeals for a writ of
prohibition, alleging that Megan’s Law had been repealed and that the scheduling
order was therefore unauthorized by law. The court of appeals granted Judge
Collins’s motion to dismiss, explaining that he did not patently and unambiguously
lack jurisdiction to proceed because the hearing provisions of Megan’s Law
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required the judge imposing sentence or the judge’s successor to determine whether
an offender is a sexual predator. 11th Dist. Lake No. 2016-L-106, 2017-Ohio-1338,
¶ 9. The court concluded that Grant had an adequate remedy by way of a direct
appeal and therefore could not show entitlement to a writ of prohibition. Id. at
¶ 11-12.
{¶ 5} Grant appealed to this court as of right.
Law and Analysis
{¶ 6} Megan’s Law, enacted in 1996 in Am.Sub.H.B. No. 180, 146 Ohio
Laws, Part II, 2560 (“H.B. 180”) and subsequently amended in 2003 by
Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558 (“S.B. 5”), established a
comprehensive system of sex-offender classification and registration that expressly
applies retroactively regardless of when the offender committed the underlying sex
offense. Former R.C. 2950.04(A), 146 Ohio Laws, Part II, at 2609-2610; see also
150 Ohio Laws, Part IV, at 6657-6661. H.B. 180 took effect on January 1, 1997.
146 Ohio Laws, Part II, at 2668.
{¶ 7} We have upheld the General Assembly’s decision to apply Megan’s
Law to those offenders who committed a sexually oriented offense before the law’s
effective date, concluding that Megan’s Law is remedial and not punitive and
therefore does not violate constitutional protections against retroactive laws. E.g.,
State v. Cook, 83 Ohio St.3d 404, 412, 700 N.E.2d 570 (1998); State v. Ferguson,
120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 40.
{¶ 8} Relevant here, the former version of R.C. 2950.09(C) in effect under
both the H.B. 180 and S.B. 5 versions of Megan’s Law applied to any person
convicted of and sentenced for an unexempt sexually oriented offense before
January 1, 1997. 146 Ohio Laws, Part II, at 2620-2621 and 150 Ohio Laws, Part
IV, at 6691-6712. Those statutes required the Ohio Department of Rehabilitation
and Correction (“DRC”) to notify the sentencing court of particular offenders who
had committed specific sexually oriented offenses or posed an identifiable risk to
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society, and upon notification from DRC, directed the court to conduct a sexual-
predator adjudication hearing before the offender’s release. Id.{¶ 9} In 2007, the General Assembly passed the AWA, repealing former
R.C. 2950.09’s hearing provisions. See State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374, 952 N.E.2d 1108, ¶ 41 (O’Donnell, J., dissenting). In place of
Megan’s Law, the AWA created a system under which offenders are classified as
Tier I, Tier II, or Tier III sex offenders based solely on the offense. Id.; R.C.
2950.01(E), (F), and (G). In Williams, however, we concluded that the provisions
of the AWA are punitive and therefore cannot be applied retroactively. Williams
at ¶ 22.
{¶ 10} Grant’s petition for a writ of prohibition asserted that because the
AWA repealed Megan’s Law, and because the AWA cannot be applied
retroactively to him, Judge Collins lacks jurisdiction to determine whether he is a
sexual predator. This analysis is flawed.
{¶ 11} In State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983
N.E.2d 316, we considered whether a sex offender who had been convicted of rape
in 1983, classified as a sexually oriented offender under Megan’s Law in 1997, and
reclassified as a Tier III sex offender pursuant to the AWA in 2008 could be
prosecuted for failing to give the sheriff notice of an address change after Megan’s
Law had been repealed by the AWA. We explained that in enacting the AWA and
repealing Megan’s Law, the General Assembly had not intended to relieve
offenders classified under the earlier law of their registration and notification
duties. Id. at ¶ 21. Rather, we noted:
“When a court strikes down a statute as unconstitutional, and
the offending statute replaced an existing law that had been repealed
in the same bill that enacted the offending statute, the repeal is also
invalid unless it clearly appears that the General Assembly meant
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the repeal to have effect even if the offending statute had never been
passed.”
Id., quoting State v. Sullivan, 90 Ohio St.3d 502, 739 N.E.2d 788 (2001), paragraph
two of the syllabus. Noting that the AWA was “more onerous” than Megan’s Law,
this court declared it “self-evident” that the General Assembly would not have
repealed Megan’s Law if the AWA had not been enacted: “It is unimaginable that
the General Assembly would have intended offenders originally classified under
Megan’s Law to be free from any reporting requirements if the AWA were to be
struck down.” Brunning at ¶ 22. Accordingly, we concluded that the registration
and notification provisions of Megan’s Law continued to apply to offenders subject
to that law.
{¶ 12} And in State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, 983
N.E.2d 341, ¶ 29, we explained that not only does a sex offender classified pursuant
to Megan’s Law remain subject to its registration and notification provisions after
January 1, 2008, but also the penalty provisions enacted as part of Megan’s Law to
punish violations of its provisions continue to apply as well. We recognized that
Ohio has, in effect, separate statutory schemes governing sex
offenders depending on when they committed their underlying
offense. Those who committed their offense before the effective
date of the AWA are subject to the provisions of Megan’s Law;
those who committed their offense after the effective date of the
AWA are subject to the AWA.
Id. at ¶ 17.
{¶ 13} Megan’s Law’s separate statutory scheme continues to apply to
offenders who committed a sexually oriented offense prior to the effective date of
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the AWA, and the repeal of the hearing provisions required to classify those
offenders is ineffective as it affects offenders subject to Megan’s Law.
Accordingly, former R.C. 2950.09(C) applies to Grant, and Judge Collins has
subject-matter jurisdiction to conduct a sexual-predator adjudication hearing to
classify Grant before his release from prison.
{¶ 14} Grant maintains that Megan’s Law cannot be applied to him,
however, because he has never been classified as a sexually oriented offender. This
assertion misunderstands the statute, because as we explained in State v. Hayden,
96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 15, an offender is
“automatically classified as a sexually oriented offender” upon conviction for a
sexually oriented offense.
{¶ 15} Grant was convicted of kidnapping and involuntary manslaughter
arising from the 1985 slaying of a 17-year-old. Although the trial court acquitted
Grant of rape, kidnapping a minor was a sexually oriented offense under the H.B.
180 version of Megan’s Law, 146 Ohio Laws, Part II, at 2601-2602, 2618-2619,
and kidnapping was a sexually oriented offense pursuant to the S.B. 5 amendments
to Megan’s Law if committed with a sexual motivation, regardless of the age of the
victim, 150 Ohio Laws, Part IV, at 6634-6635. Grant admits in his brief that he
killed a minor while having sexual intercourse with her, and it is possible that his
kidnapping conviction resulted in his automatic classification as a sexually oriented
offender.
{¶ 16} Accordingly, there is at least a factual question regarding whether
Grant committed a sexually oriented offense, and Judge Collins does not patently
and unambiguously lack jurisdiction to conduct a sexual-predator adjudication
hearing to decide that factual question in the first instance. Grant has an adequate
remedy by way of appeal from any erroneous exercise of that jurisdiction. See State
v. Clayborn, 125 Ohio St.3d 450, 2010-Ohio-2123, 928 N.E.2d 1093, ¶ 16 (a
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sexual-offender classification may be appealed, and the appeal must be filed within
30 days after judgment is entered).
{¶ 17} Lastly, Grant’s reliance on cases upholding the finality of criminal
sentences is misplaced, because classification as a sex offender under Megan’s Law
is a civil, remedial consequence of the conviction and not a punitive component of
criminal sentencing. Cook, 83 Ohio St.3d at 417, 700 N.E.2d 570; State v.
Williams, 88 Ohio St.3d 513, 528, 728 N.E.2d 342 (2000); State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 32; Ferguson, 120 Ohio St.3d
7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 36. Sex-offender classification and
registration laws therefore do not affect the finality of Grant’s convictions and
sentence.
{¶ 18} Here, Grant’s allegations are insufficient to establish either that
Judge Collins patently and unambiguously lacks jurisdiction to proceed or that
appeal from any erroneous exercise of that jurisdiction would not be an adequate
remedy in the ordinary course of the law. Accordingly, we affirm the dismissal of
this prohibition action.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
_________________
Scott A. Grant, pro se.
Charles E. Coulson, Lake County Prosecuting Attorney, and Teri R. Daniel,
Assistant Prosecuting Attorney, for appellee.
_________________
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