State v. Schilling, Unpublished Decision (7-2-1998)

OPINION On June 20, 1996, appellant, John M. Schilling, was indicted on one count of attempted gross sexual imposition. On July 15, 1996, appellant entered a guilty plea to the sole count in the indictment. He was found guilty and on August 22, 1996, he was sentenced to a one and one-half year term in prison. Pursuant to R.C. 2950.09(C), The Ohio Department of Corrections determined that appellant should be recommended to the sentencing court for adjudication as a sexual predator. The trial court accordingly scheduled a hearing for purposes of determining appellant's status as a sexual predator. On June 19, 1997, appellant filed a motion to dismiss the scheduled proceedings. Appellant alleged that R.C. 2950 was unconstitutional as it applied to him. On July 25, 1997, the trial court denied appellant's motion to dismiss and found appellant to be a sexual predator. Appellant now appeals setting forth the following assignments of error:

"I. THE PROVISIONS OF R.C. 2950.01, ET SEQ., ENACTED AS PART OF AM.SUB.H.B. 180, WHEN APPLIED TO CONDUCT PRIOR TO THEIR EFFECTIVE DATE, VIOLATE THE EX POST FACTO, DOUBLE JEOPARDY, AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF OHIO.

II. THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT HAD BEEN PROVED BY CLEAR AND CONVINCING EVIDENCE TO BE A SEXUAL PREDATOR."

Upon the authority of this court's decision in State v.Gonyer (June 26, 1998), Wood App. No. WD-97-062, unreported, this court finds appellant's arguments well-taken. The application of R.C. Chapter 2950 to conduct prior to the effective date of the statute violates Article II, Section 28 of the Ohio Constitution because it constitutes a retroactive application of the law.

On consideration whereof, the court finds that substantial justice has not been done the party complaining, and the judgment of the Lucas County Common Pleas Court is reversed and remanded for further proceedings consistent with this decision. Costs assessed to appellee.

JUDGMENT REVERSED. George M. Glasser, J. Melvin L. Resnick, J. James R. Sherck, J.

CONCUR.