In re Von (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Von, Slip Opinion No. 2016-Ohio-3020.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-3020
IN RE VON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Von, Slip Opinion No. 2016-Ohio-3020.]
Criminal law―Sex offenders―Registration requirements―R.C.
2950.15―Retroactive application―Registration-termination procedure in
R.C. 2950.15 does not apply to sex offenders who committed their offenses
prior to January 1, 2008.
(No. 2015-0619—Submitted February 24, 2016—Decided May 18, 2016.)
APPEAL from the Court of Appeals for Trumbull County,
No. 2013-T-0085, 2015-Ohio-943.
____________________
O’DONNELL, J.
{¶ 1} The state of Ohio appeals from a judgment of the Eleventh District
Court of Appeals reversing a trial court order that denied Aaron K. Von’s motion
to terminate his sex offender registration duties. The issue presented in this court
is whether the procedure to terminate reporting requirements which the General
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Assembly enacted effective January 1, 2008, applies to sex offenders who
committed offenses prior to that date.
Facts and Procedural History
{¶ 2} Von moved to terminate his duty to comply with sex offender
registration laws pursuant to R.C. 2950.15, claiming that on January 29, 1997, he
was convicted in the state of Colorado of sexual assault of a child, a fourth degree
felony, and sexual assault in the third degree, a first degree misdemeanor. Von
maintained that he moved to Ohio in August 2011 and registered as a sex offender
but did not specify his classification.
{¶ 3} The state opposed the motion to terminate, arguing that R.C. 2950.15
applies only to sex offenders convicted on or after January 1, 2008, the effective
date of the Adam Walsh Act (2007 Am.Sub.S.B. No. 10). The state cited State v.
Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, for the
proposition that the statute could not be applied retroactively to Von, who was
convicted prior to that date. The date of Von’s convictions placed him within the
purview of Megan’s Law (1996 Am.Sub.H.B. No. 180), which was repealed by the
Adam Walsh Act and which had no provision for terminating the duty to comply
with sex offender registration laws.
{¶ 4} While the trial court was considering Von’s motion to terminate, Von
sought a preliminary injunction to stay the enforcement of a change in his
classification from a “Tier One Sexually Oriented Offender” to a “Tier Three”
offender. Von attached notices indicating that he had been adjudicated a “(Pre
AWA) Sexually Oriented Offender” but was later adjudicated a “(Pre AWA)
SEXUAL PREDATOR.” (Capitalization sic.)
{¶ 5} The trial court issued the following order: “Petitioner is entitled to a
preliminary injunction until this Court issues a determination of the merits of
Petitioner’s challenge under R.C. 2950.031(E) or until further order of the Court.”
The order included a handwritten statement that Von was to “remain tier 1” and
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that the state did not oppose him “REMAINING TIER I UNTIL
DETERMINATION OF MERITS.” (Capitalization sic.)
{¶ 6} The trial court then denied the motion to terminate Von’s duty to
comply with sex offender registration laws because at the time of his convictions,
Megan’s Law was in effect in Ohio as codified in R.C. Chapter 2950, and it
contained “no provision to terminate one’s status as a registered sex offender post-
conviction.” The court concluded that subsequent amendments to R.C. Chapter
2950 were not retroactive.
{¶ 7} In a split decision, the appellate court reversed. In the lead opinion,
Judge Wright concluded that R.C. 2950.15 may be applied retroactively because
the statute expressly states that it applies to an offender regardless of when the
offense was committed. Moreover, the statute creates a new right for offenders
without imposing a new burden or obligation on the state. That opinion further
asserted that to be eligible for relief, Von had to be a Tier I sex offender—an Adam
Walsh Act classification—but the trial court had not made a final determination
regarding his status. The lead opinion explained that “even though many provisions
of the Adam Walsh Act were declared unconstitutional as applied to offenders
convicted of sex crimes that occurred prior to January 1, 2008, R.C. 2950.15 can
be severed from those other provisions.” 2015-Ohio-943, at ¶ 26. Thus, the lead
opinion ordered the matter remanded to the trial court to determine Von’s status
and to consider the merits of the motion to terminate if it found that Von is a Tier I
sex offender for purposes of deciding his eligibility for relief pursuant to R.C.
2950.15.
{¶ 8} Judge Cannon authored a separate opinion concurring in judgment
only. He explained that Von is subject to Megan’s Law, not the Adam Walsh Act,
and therefore R.C. 2950.15 does not retroactively apply to him. He noted that
“[t]his would effectively defeat [Von’s] application because * * * [he] should not
be classified as a Tier I offender.” Id. at ¶ 40 (Cannon, P.J., concurring in judgment
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only). Judge Cannon further opined that Von’s classification under Megan’s Law
was subject to debate and concurred in the decision to remand that issue to the trial
court.
{¶ 9} Judge Grendell dissented and expressed a third view that the record
contained no evidence that Von had ever been classified as a Tier I sex offender;
based on Williams, she explained, it would be unconstitutional to classify him as a
Tier I sex offender, and she therefore concluded that R.C. 2950.15 was
“inapplicable to Von on its face.” Id. at ¶ 44 (Grendell, J., dissenting). She also
expressed the view that the propriety of Von’s previous Megan’s Law
classifications was not properly before the appellate court.
{¶ 10} We accepted the state’s discretionary appeal from the appellate court
on two propositions of law:
The registration termination procedure delineated in R.C.
2950.15 may not be retroactively applied to sex offenders who
commit their crimes before January 1, 2008 and who are convicted
and sentenced before that date.
A statute which has not been found unconstitutional is not
subject to the judicial remedy of severance.
Positions of the Parties
{¶ 11} The state maintains that the appellate court erred in holding that sex
offenders classified under Megan’s Law may avail themselves of the privilege
legislatively granted to Adam Walsh Act offenders to terminate their registration
obligations. The state urges that only Tier I sex offenders are eligible offenders for
purposes of R.C. 2950.15, and pursuant to this court’s holding in Williams, the
Adam Walsh Act and its tier classifications do not retroactively apply to offenders
like Von who committed their crimes before the Adam Walsh Act took effect.
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January Term, 2016
Thus, those offenders cannot be classified as Tier I sex offenders and cannot take
advantage of the termination procedure in R.C. 2950.15. The state does not oppose
a remand to the trial court for a determination of Von’s proper Megan’s Law
classification, recognizing the confusion that exists on this point.
{¶ 12} Von did not file a merit brief.
Issue
{¶ 13} The issue here is whether the statutory procedure to terminate the
obligation for sex offenders to comply with registration requirements applies to
offenders who committed their offenses before the statute’s effective date. More
simply stated, do the statutory procedures to relieve an Adam Walsh Act offender
from the obligation to report apply to a Megan’s Law offender? Plainly, they do
not.
Law and Analysis
Background
{¶ 14} In 1996, the General Assembly enacted Megan’s Law, which revised
R.C. Chapter 2950 and established a comprehensive system of classifying sex
offenders into three categories: sexually oriented offenders, habitual sex offenders,
and sexual predators. Former R.C. 2950.09, 146 Ohio Laws, Part II, 2618.
{¶ 15} Then, in 2007, the General Assembly enacted the Adam Walsh Act,
which “repealed Megan's Law, effective January 1, 2008, and replaced it with new
standards for sex-offender classification and registration pursuant to the federal
Adam Walsh Child Protection and Safety Act, Section 16901 et seq., Title 42,
U.S.Code.” Bundy v. State, 143 Ohio St. 3d 237, 2015-Ohio-2138, 36 N.E.3d 158,
¶ 5. This scheme, which the General Assembly codified in R.C. Chapter 2950,
divides sex offenders into Tier I, Tier II, and Tier III sex or child-victim offenders.
R.C. 2950.01(E) through (G).
{¶ 16} In Williams, this court considered whether the Adam Walsh Act
could constitutionally be retroactively applied to an offender who committed a sex
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offense prior to its enactment. We concluded that the Adam Walsh Act, part of
which was expressly made retroactive, is punitive, and “as applied to defendants
who committed sex offenses prior to its enactment, violates Section 28, Article II
of the Ohio Constitution, which prohibits the General Assembly from passing
retroactive laws.” Williams at ¶ 16 and at the syllabus.
{¶ 17} Subsequently, we clarified that only persons who commit their
underlying offense on or after the effective date of the Adam Walsh Act can be
constitutionally subjected to its requirements. In re Bruce S., 134 Ohio St. 3d 477,
2012-Ohio-5696, 983 N.E.2d 350.
R.C. 2950.15
{¶ 18} R.C. 2950.15 provides:
(A) As used in this section * * *, “eligible offender” means
a person who is convicted of, pleads guilty to, was convicted of, or
pleaded guilty to a sexually oriented offense or child-victim oriented
offense, regardless of when the offense was committed, and is a tier
I sex offender/child-victim offender * * *.
(B) Pursuant to this section, an eligible offender may make a
motion to the court of common pleas * * * requesting that the court
terminate the eligible offender’s duty to comply with sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.
(Emphasis added.)
{¶ 19} While R.C. 2950.15(A) explicitly states that a person qualifies as an
eligible offender “regardless of when the offense was committed,” that statement is
ineffective by itself to qualify an individual as an eligible offender unless that
offender is also a Tier I sex offender, because the statute uses the conjunction “and,”
which imposes a dual requirement to effect its application.
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{¶ 20} The record contains no evidence that Von has been classified as a
Tier I sex offender or child-victim offender. To the contrary, the documentation
attached to his motion for a preliminary injunction demonstrates that he has been
previously classified as a Megan’s Law offender, not an Adam Walsh Act offender.
And therefore, he is not a Tier I sex offender.
{¶ 21} As established by this court in Williams and In re Bruce S., the tier
classification system of the Adam Walsh Act cannot be constitutionally applied to
Von or other sex offenders who committed offenses prior to its effective date,
regardless of when they are convicted or sentenced.
{¶ 22} The claim that the remedy of severance would permit Megan’s Law
offenders to be reclassified as Adam Walsh Act Tier I offenders for the purpose of
having their Megan’s Law duties terminated is inconsistent with Williams, In re
Bruce S., and the plain language of R.C. 2950.15(B), which permits eligible
offenders to request termination of their “duty to comply with sections R.C.
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.” Notably, the
legislature made no reference to Megan’s Law, which is indicative of its intent that
those offenders are not eligible for termination of those registration duties.
{¶ 23} Accordingly, Von and other sex offenders who committed their
offenses prior to January 1, 2008, the effective date of the Adam Walsh Act, cannot
be constitutionally classified pursuant to it and therefore cannot be “eligible
offenders” as defined by R.C. 2950.15(A).
Conclusion
{¶ 24} The registration termination procedure delineated in R.C. 2950.15
does not apply to sex offenders who committed their offenses prior to January 1,
2008. Accordingly, the judgment of the appellate court is reversed to the extent that
it reversed the denial of Von’s motion to terminate his duty to comply with sex
offender registration laws.
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{¶ 25} However, given the confusion regarding Von’s current status, we
affirm the judgment of the appellate court to the extent that it remanded this matter
for a determination of his sex offender classification pursuant to Megan’s Law. We
remand the cause to the trial court with instructions to determine the appropriate
classification for Von in accordance with Megan’s Law.
Judgment affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and PFEIFER, KENNEDY, and FRENCH, JJ., concur.
LANZINGER, J., concurs in judgment only.
O’NEILL, J., dissents.
_________________
Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
Annos and Deena L. DeVico, Assistant Prosecuting Attorneys, for appellant.
_________________
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