DocketNumber: No. 08CA12.
Citation Numbers: 2008 Ohio 6700
Judges: KLINE, J.
Filed Date: 12/8/2008
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} The classification of sexual offenders and the notification requirements of the same are contained in Chapter
{¶ 3} On appeal, Countryman contends that the trial court's retroactive application of Senate Bill 10 is unconstitutional. Because Countryman failed to raise his various constitutional arguments in the trial court, we find that he has forfeited his right to raise them for the first time on appeal. Countryman next contends that the trial court's retroactive application of Senate Bill 10 was plain error. Because we disagree with the premise of all of Countryman's arguments (i.e., that Senate Bill 10 is punitive), we do not find any error, let alone plain error. Countryman next contends that he was denied the effective assistance of trial counsel because his counsel failed to object to the court's retroactive application of Senate Bill 10. Because Countryman failed to meet the Strickland two-pronged test, we disagree. Accordingly, we affirm the judgment of the trial court.
{¶ 5} On March 6, 2008, the trial court sentenced Countryman to six years in prison and classified him a Tier III offender under the newly enacted Senate Bill 10.
{¶ 6} Countryman appeals his Tier III classification under Senate Bill 10 and asserts the following three assignments of error: I. "The retroactive application of Senate Bill 10 violates the Ex Post Facto, Due Process, and Double Jeopardy *Page 3
Clauses of the United States Constitution and the Retroactivity Clause of Section
{¶ 8} App. R. 12(A)(2) states, "The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based[.]" Countryman does not cite to the record to show where the trial court overruled the issues he now presents for review. Also, we have reviewed the record Countryman provided and find that Countryman failed to raise these issues in the trial court. As such, because Countryman failed to raise his constitutional arguments in the trial court, we first address whether Countryman may raise them for the first time on appeal.
{¶ 9} "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v. *Page 4 Awan (1986),
{¶ 10} Here, we decline to exercise our discretion to review Countryman's assignment of error and find that he has forfeited his right to raise the constitutional issues asserted in his first assignment of error. In addition, we note that other courts have addressed these identical issues and did not find any state or federal constitutional violations. See, e.g., State v. Byers, Columbiana App. No. 07CO39, 2008-Ohio-5051.
{¶ 12} Pursuant to Crim. R. 52(B), we may notice plain errors or defects affecting substantial rights, although they were not brought to the attention of the court. The Supreme Court of Ohio has found that "[b]y its very terms, the rule places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial." State v. Barnes,
{¶ 13} "The burden of demonstrating plain error is on the party asserting it. (Cite omitted.) A reversal is warranted if the party can prove that the outcome ``would have been different absent the error.'"Payne at ¶ 17 (Citation omitted.) A reviewing court should use its discretion under Crim. R. 52(B) to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978),
{¶ 14} Here, Countryman acknowledges that the Supreme Court of Ohio inState v. Cook,
{¶ 15} The crux of all of Countryman's constitutional arguments is that Senate Bill 10 ties sex-offender classification, registration, and notification requirements directly and solely to the crime of conviction. As such, Countryman claims that Senate Bill 10 has created a sex-offender registration scheme that is no longer remedial and civil in nature. He maintains that sex-offender registration, as it functions under Senate Bill 10, is purely punitive, and is, in fact, part of the original sentence. In short, Countryman asserts that Senate Bill 10 is punitive because, instead of the court looking at defendants individually to determine how dangerous they are before it classifies them, classification is now tied solely to the type of crime committed.
{¶ 16} We do not find Countryman's argument persuasive. The Supreme Court of the United States has already stated, "[t]he State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment[.]" Smith v.Doe (2003),
{¶ 17} Therefore, because the premise of Countryman's constitutional arguments is based on the statute being punitive or criminal, instead of civil, his ex post facto and due process arguments fail. Consequently, we do not find any error, let alone plain error.
{¶ 18} Accordingly, we overrule Countryman's second assignment of error.
{¶ 20} "In Ohio, a properly licensed attorney is presumed competent and the appellant bears the burden to establish counsel's ineffectiveness." State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473, citing State v. Hamblin (1988),
{¶ 21} This court "when addressing an ineffective assistance of counsel claim, should not consider what, in hindsight, may have been a more appropriate course of action." Wright, citing State v.Phillips (1995),
{¶ 22} Here, Countryman bases his ineffective assistance of counsel claim on the arguments he made in his first and second assignments of error. However, we did not find error. Therefore, under the first prong of the Strickland test, we find that Countryman's trial counsel's performance was not deficient.
{¶ 23} Accordingly, we overrule Countryman's third assignment of error and affirm the judgment of the trial court.
*Page 9JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and McFarland, J.: Concur in Judgment and Opinion.