DocketNumber: No. 08 CA 5.
Judges: WISE, J.
Filed Date: 11/14/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Appellee is the State of Ohio.
{¶ 4} On January 28, 2008, following a pre-sentence investigation, Appellant was sentenced to a definite term of incarceration of two years on each of the three counts, to be served concurrently. Said Sentencing Entry was journalized on February 1, 2008.
{¶ 5} At the sentencing hearing, the trial court classified Appellant as a "Tier III Sex Offender" pursuant to R.C. Chapter
{¶ 6} It is from this classification that Appellant now appeals, assigning the following error:
{¶ 9} Senate Bill 10 modified R.C. Chapter
{¶ 10} The changes made to R.C. Chapter
{¶ 11} Now, under Senate Bill 10, those labels are no longer used and the registration requirements are longer in duration. An offender who commits a sexually oriented offense is found to be either a "sex offender" or a "child-victim offender". Depending on what crime the offender committed, they are placed in Tier I, Tier II or Tier III. The tiers dictate what the registration and notification requirements are. Tier I is the lowest tier. It requires registration once annually for 15 years, but there are no community notification requirements. Tier II requires registration every 180 days for 25 years, but it also has no community notification requirements. Tier III, the highest tier and similar to the old sexual predator finding, requires registration every 90 days for life and the community notification may occur every 90 days for life.
{¶ 12} We now turn to Appellant's argument that Senate Bill 10 violates the prohibition against ex post facto laws and the prohibition against retroactive laws.
{¶ 13} In reviewing the constitutionality of an enactment of the General Assembly, we note that in State v. Cook,
{¶ 14} "An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State ex rel.Dickman v. Defenbacher (1955),
{¶ 15} In State v. Cook, the Ohio Supreme Court addressed whether Ohio's then newly enacted sex offender statutes violated the retroactivity clause of the Ohio Constitution or the ex post facto clause of the United States Constitution as applied to previously convicted defendants. The Court found that they did not.
{¶ 16} To determine whether the Cook decision is controlling here, we first address how Senate Bill 10 changed the sex offender registration statutes. Perhaps the most fundamental changes occur in R.C. §
{¶ 17} Prior to the imposition of Senate Bill 10, a sentencing court was required to determine whether sex offenders fell into one of the following classifications: (1) sexually oriented offender; (2) habitual sex offender; or (3) sexual predator. R.C. §
{¶ 18} "(a) The offender's . . . age; *Page 6
{¶ 19} "(b) The offender's . . . prior criminal or delinquency record regarding all offenses, including, but not limited to, all sexual offenses;
{¶ 20} "(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed . . .;
{¶ 21} "(d) Whether the sexually oriented offense for which sentence is to be imposed . . . involved multiple victims;
{¶ 22} "(e) Whether the offender . . . used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;
{¶ 23} "(f) If the offender . . . previously has been convicted of or pleaded guilty to, or been adjudicated a delinquent child for committing an act that if committed by an adult would be, a criminal offense, whether the offender . . . completed any sentence or dispositional order imposed for the prior offense or act and, if the prior offense or act was a sex offense or a sexually oriented offense, whether the offender . . . participated in available programs for sexual offenders;
{¶ 24} "(g) Any mental illness or mental disability of the offender . . .;
{¶ 25} "(h) The nature of the offender's . . . sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse;
{¶ 26} "(i) Whether the offender . . . during the commission of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made, displayed cruelty or made one or more threats of cruelty; *Page 7
{¶ 27} "(j) Any additional behavioral characteristics that contribute to the offender's . . . conduct." R.C. §
{¶ 28} "In classifying an offender as a sexual predator, the Revised Code requires the trial court to make this finding only when the evidence is clear and convincing that the offender is a sexual predator." State v. Naugle, 3rd Dist. No. 2-03-32,
{¶ 29} Senate Bill 10 abolished the prior classifications contained in R.C. §
{¶ 30} In Cook, supra, the Ohio Supreme Court found that the sex offender registration statutes were remedial in nature and therefore, did not violate the ban on retroactive laws as set forth in Section
{¶ 31} "This court has held that where no vested right has been created, "a later enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration * * * created at least a reasonable expectation of finality." State ex rel. Matz v. Brown (1988),
{¶ 32} * * * *Page 8
{¶ 33} "Under Van Fossen and Matz, we conclude that the registration and address verification provisions of R.C. Chapter
{¶ 34} "Consequently, we find that the registration and verification provisions are remedial in nature and do not violate the ban on retroactive laws set forth in Section
{¶ 35} The Cook court also determined that Ohio's sex offender statutes did not violate the ex post facto clause of the United States Constitution, finding, after significant analysis, as follows:
{¶ 36} "R.C. Chapter