DocketNumber： 2009-0088
Judges： Pfeifer, O'Connor, Stratton, Lanzinger, Brown, O'Donnell, Cupp
Filed Date： 7/13/2011
Status： Precedential
Modified Date： 10/19/2024
Factual and Procedural Background
{¶ 1} In November 2007, appellant, George Williams, was indicted for unlawful sexual contact with a minor, a felony of the fourth degree under R.C. 2907.04. The indictment stated that Williams, “being eighteen years of age or older, did engage in sexual conduct with another, not the spouse of the offender, when the offender knows such other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.” Williams pleaded guilty in open court. During the plea colloquy, the trial court twice stated that Williams’s conviction would not subject him to reporting requirements.
{¶ 2} Williams subsequently moved to be sentenced under the version of R.C. Chapter 2950 in effect at the time that he committed the offense. He argued that major changes to R.C. Chapter 2950 took effect on January 1, 2008, and that “[t]he sentencing law and reporting law that should apply to the Defendant is the law that was in effect at the time of the criminal conduct and at the time of the plea.” The state opposed the motion, arguing that Williams could not point to any basis for his motion or any justification for the trial court to ignore the law, because none existed. The trial court denied the motion.
{¶ 4} On appeal, Williams argued that the provisions of S.B. 10 cannot constitutionally be applied to a defendant whose offense occurred before July 1, 2007. The court of appeals disagreed and affirmed the decision of the trial court, concluding that “the classification and registration provisions of Senate Bill 10 do not violate the Ohio Constitution’s ban on retroactive laws.” State v. Williams, 12th Dist. No. CA2008-02-029, 2008-Ohio-6195, 2008 WL 5052748, ¶ 112.
{¶ 5} We accepted Williams’s discretionary appeal. State v. Williams, 121 Ohio St.3d 1449, 2009-Ohio-1820, 904 N.E.2d 900.
Analysis
S.B. 10
{¶ 6} S.B. 10 is one step of an evolution in the treatment of convicted sex offenders in the state of Ohio. See State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 3-28. Because the issue before us is narrow, it is not necessary to again discuss that history.
{¶ 7} The statutory scheme for the classification and registration of sex offenders in effect at the time Williams committed the offense and when he entered his plea, Ohio’s version of the federal Megan’s Law, Section 14071, Title 42, U.S.Code, was enacted in 1996, Am.Sub.H.B. No. 180,146 Ohio Laws, Part II, 2560, and was significantly amended in 2003 by Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558. The current statutory scheme, S.B. 10, was enacted in 2007, and is based on the federal Adam Walsh Act, Section 16901 et seq., Title 42, U.S.Code. The classification scheme for sex offenders changed under S.B. 10: an offender is now subject to additional reporting and registration requirements and is subject to those requirements for a longer time. See Bodyke at ¶ 24-28. The issue before us is whether these changes, when applied to a person whose crime was committed prior to the enactment of S.B. 10, violate the prohibition against ex post facto laws contained in Section 10, Article I of the United States Constitution or the prohibition against retroactive laws contained in Section 28, Article II of the Ohio Constitution. Because we conclude that S.B. 10 violates the
Prohibition against retroactive laws
{¶ 8} Section 28, Article II of the Ohio Constitution states that “[t]he general assembly shall have no power to pass retroactive laws.” When analyzing whether a statute is unconstitutionally retroactive, we use a two-part test. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 7-9. In the first part of the test, we “ask whether the General Assembly expressly made the statute retroactive.” Id. at ¶ 8. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus (“The 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”). R.C. 2950.03, for example, imposes registration requirements for offenders sentenced on or after January 1, 2008, regardless of when the offense was committed. Because this portion of S.B. 10 was intended to apply retroactively, we now turn to the second part of the test, which requires us to determine whether the statutory provisions are substantive or remedial. Hyle at ¶ 8. See also State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10.
{¶ 9} In Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 37, we stated that “[i]t is well established that a statute is substantive if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right. Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489. Remedial laws, however, are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right.” See Bielat v. Bielat (2000), 87 Ohio St.3d 350, 352-353, 721 N.E.2d 28, quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51, 59 N.E. 749 (“The retroactivity clause nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective]’ ” [bracketed material sic]).
S.B. 5 v. S.B. 10 and remedial v. punitive
{¶ 10} This court has consistently held that “R.C. Chapter 2950 is a remedial statute.” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 29. We have also stated, “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.’ ” State v. Cook (1998), 83 Ohio St.3d 404, 418, 700 N.E.2d 570. In Cook, we examined the guideposts listed in Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169,
{¶ 11} After Cook was issued, R.C. Chapter 2950 was amended by S.B. 5. This court again concluded that despite the changes effected by S.B. 5, R.C. Chapter 2950 was a remedial statute. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 43. Some factors pertaining to the statutory scheme governing sex offenders, however, suggested that the statutory scheme was punitive. First, the procedures for registration and classification of sex offenders were placed within Ohio’s criminal code, R.C. Title 29. Second, failure to comply with certain registration requirements subjected a sex offender to criminal prosecution. R.C. 2950.99.
{¶ 12} In a dissent in Ferguson, Justice Lanzinger wrote as follows:
{¶ 13} “Although the majority continues to rely on State v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570, the first case that considered retroactive application of R.C. 2950.09(B), R.C. Chapter 2950 has been amended. The simple registration process and notification procedures are now different from those considered in Cook and in State v. Williams (2000), 88 Ohio St.3d 513, 728 N.E.2d 342. R.C. Chapter 2950 has been transformed from remedial to punitive as I have previously argued:
{¶ 14} “ ‘The following comparisons show that the current laws are more complicated and restrictive than those at issue in Williams and Cook. First, the label “sexual predator” is now permanent for adult offenders, R.C. 2950.07(B)(1), whereas previously, offenders had the possibility of having it removed. Former R.C. 2950.09(D), Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, 2621-2623. Second, registration duties are now more demanding and therefore are no longer comparable to the inconvenience of renewing a driver’s license, as Cook had analogized. Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. Persons classified as sex offenders must now personally register with the sheriff of the county in which they reside, work, and go to school. R.C. 2950.04(A). Sexual predators must personally register with potentially three different sheriffs every 90 days, R.C. 2950.06(B)(1)(a), which is hardly comparable to the slight inconvenience of having one’s driver’s license renewed every four years. Third, community notification has expanded to the extent that any statements, information, photographs, or fingerprints that an offender is required to provide are public record and much of that material is now included in the sex-offender database maintained on the Internet by the attorney general. R.C. 2950.081. In Cook, we considered it significant that the information provided to sheriffs by sex offenders could be disseminated to only a restricted group of people. Cook, 83 Ohio St.3d at 422, 700 N.E.2d 570. Fourth, new restrictions have been added to R.C. Chapter 2950.
{¶ 15} “ ‘While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that severe obligations are imposed upon those classified as sex offenders. All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. Id., 83 Ohio St.3d at 418, 700 N.E.2d 570. Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.’ State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 45-46 (Lanzinger, J., concurring in part and dissenting in part).” Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 45-47 (Lanzinger, J., dissenting).
{¶ 16} Following the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive. The statutory scheme has changed dramatically since this court described the registration process imposed on sex offenders as an inconvenience “comparable to renewing a driver’s license.” Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. And it has changed markedly since this court concluded in Ferguson that R.C. Chapter 2950 was remedial.
{¶ 17} Under the statutory scheme in effect at the time Williams committed the offense, he was entitled to a hearing at which a court would determine whether he should be classified as a sexual predator, a habitual sex offender or a habitual child-victim offender, or a sexually oriented offender. The court would have considered various statutory factors in making its determination. Former R.C. 2950.09(B)(3), Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6558, 6689-6690. Under S.B. 10, Williams is classified as a Tier II sex offender based solely on the
{¶ 18} Under S.B. 5, Williams might not have been subject to registration requirements. The trial court twice informed Williams that he would not be required to register as a sex offender. Under S.B. 10, based on his classification as a Tier II sex offender, Williams is automatically subject to registration requirements that obligate him to register in person in the county where he resides, in the county where he works, and in the county where he attends school. R.C. 2950.04(A)(2).
{¶ 19} Under S.B. 5, Williams could have been required to register as a sex offender for a period of ten years. Former R.C. 2950.07(B)(3), 150 Ohio Laws, Part IV, at 6681-6683. Based upon comments made by the judge when Williams entered his plea, he likely would not have been required to register. Under S.B. 10, Williams is required to register as a sex offender for 25 years. R.C. 2950.07(B)(2).
{¶ 20} Sex offenders are no longer allowed to challenge their classifications as sex offenders because classification is automatic depending on the offense. Judges no longer review the sex-offender classification. In general, sex offenders are required to register more often and for a longer period of time. They are required to register in person and in several different places. R.C. 2950.06(B) and 2950.07(B). Furthermore, all the registration requirements apply without regard to the future dangerousness of the sex offender. Instead, registration requirements and other requirements are based solely on the fact of a conviction. Based on these significant changes to the statutory scheme governing sex offenders, we are no longer convinced that R.C. Chapter 2950 is remedial, even though some elements of it remain remedial. We conclude that as to a sex offender whose crime was committed prior to the enactment of S.B. 10, the act “imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction,” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶ 37, and “create[s] new burdens, new duties, new obligations, or new liabilities not existing at the time,” Miller, 64 Ohio St. at 51, 59 N.E. 749.
{¶ 21} No one change compels our conclusion that S.B. 10 is punitive. It is a matter of degree whether a statute is so punitive that its retroactive application is unconstitutional. Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. When we consider all the changes enacted by S.B. 10 in aggregate, we conclude that imposing the current registration requirements on a sex offender whose crime was committed prior to the enactment of S.B. 10 is punitive. Accordingly, we conclude that S.B. 10, 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.
{¶ 22} The General Assembly has the authority, indeed the obligation, to protect the public from sex offenders. It may not, however, consistent with the Ohio Constitution, “impose[] new or additional burdens, duties, obligations, or liabilities as to a past transaction.” Pratte, 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, at ¶ 37. If the registration requirements of S.B. 10 are imposed on Williams, the General Assembly has imposed new or additional burdens, duties, obligations, or liabilities as to a past transaction. We conclude that S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.
{¶ 23} We reverse the judgment of the court of appeals and remand the cause for resentencing under the law in effect at the time Williams committed the offense.
Judgment reversed and cause remanded.