State v. Brown

[Cite as State v. Brown, 2021-Ohio-4130.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 109979
v. :
MICHAEL T. BROWN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED
RELEASED AND JOURNALIZED: November 18, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-600626-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory Ochocki, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defendant, and
Robert Blanshard McCaleb, Assistant Public Defendant,
for appellee.
EILEEN A. GALLAGHER, P.J.:
The state appeals the trial court’s decision granting defendant-
appellee Michael Brown’s motion to vacate the requirement that he enroll in the
violent offender database (“VOD”) established by Sierah’s Law, R.C. 2903.41
through 2903.44, based on his 2016 conviction for voluntary manslaughter. The
state argues that the trial court erred in granting Brown’s motion because (1) the
motion, filed more than three months after Brown was granted judicial release, was
untimely and (2) the VOD enrollment requirements are mandatory and
constitutional.
For the reasons that follow, we reverse.
Procedural History and Factual Background
On March 10, 2016, the trial court sentenced Brown to six years in
prison and imposed five years of mandatory postrelease control after Brown pled
guilty to one count of voluntary manslaughter, with a three-year firearm
specification, and one count of having weapons while under disability. The offenses
related to an incident that occurred on January 1, 2015, which resulted in the death
of Delvon Kelley.
Sierah’s Law and the Violent Offender Database
On March 20, 2019, Am.Sub.S.B. No. 231, known as “Sierah’s Law,”
went into effect, establishing a statewide VOD along with a presumption that
offenders convicted of certain specified violent offenses must enroll in the VOD for
a minimum period of ten years following their release from confinement. See R.C.
2903.41 through 2903.44 (the “VOD statutes”). The VOD enrollment requirements
presumptively apply to anyone who is convicted of or who pleads guilty to any of the
specified violent offenses on or after March 20, 2019 as well as to anyone who had
previously been convicted of such an offense and who was serving a term of
confinement for such an offense on the law’s effective date. R.C. 2903.41(A);
2903.42(A)(1). Voluntary manslaughter is one of the violent offenses to which the
VOD statutes apply. See R.C. 2903.41(A) (defining “violent offender”).
A violent offender who is subject to VOD enrollment requirements
must report in person at the sheriff’s office in the county in which the offender
resides within ten days following his or her release from confinement in order to
enroll in the database. R.C. 2903.43(A)(2). The offender is required to provide: his
or her full name (and any alias), residence address, place of employment, school,
social security number and driver’s license or state identification card number; the
violent offense that is subject to the VOD; the license plate number, vehicle
identification number and a description of vehicle(s) owned or operated by the
offender and a description of any scars, tattoos or other distinguishing marks on the
offender. R.C. 2903.43(C)(2). The violent offender must also provide his or her
fingerprints and palm prints and must allow the sheriff to photograph the offender.
R.C. 2903.43(C)(3). The violent offender must re-enroll in the VOD annually for ten
years.1 R.C. 2903.43(D)(1). If the offender moves, he or she must notify the sheriff
of his or her change of address within three business days. R.C. 2903.43(E).2
An offender who recklessly fails to enroll, re-enroll or notify the
sheriff of a change of address is guilty of a fifth-degree felony. R.C. 2903.43(I)(1),
(2). Such a failure also constitutes a violation of community control sanctions,
parole, postrelease control sanctions, or other type of supervised release, if
applicable. R.C. 2903.43(I)(2).
A violent offender may rebut the presumption that he or she is
required to enroll in the VOD by filing a motion with the sentencing court prior to,
or at the time of sentencing, for the violent offense (or if the offender was
incarcerated at the time Sierah’s Law went into effect, by filing a motion with the
court that sentenced the offender for the violent offense prior to the offender’s
release from confinement for that offense). R.C. 2903.42(A)(2). The presumption
is rebutted if, at a hearing on the matter, the offender proves by a preponderance of
the evidence that the offender was not the principal offender. R.C.
2903.42(A)(4)(a). If the offender rebuts the presumption, the hearing is continued
1 The VOD enrollment period may be extended beyond ten years if the prosecutor
files a motion with the court requesting that the enrollment period be extended, and the
court finds that the violent offender has violated a term or condition of a sanction imposed
under the offender’s sentence or has been convicted of another felony or a violent
misdemeanor during the ten-year enrollment period. R.C. 2903.43(D)(2). In such a case,
the offender’s VOD duties “shall continue indefinitely” unless and until they are
terminated under R.C. 2903.44.
2 The duty to enroll, to re-enroll and to provide notice of a change-of-address
imposed under R.C. 2903.42 through 2903.44 are collectively referred to herein as “VOD
duties” or “VOD enrollment requirements.” See also R.C. 2903.41(H).
for a second phase during which the trial court, after considering statutory criteria,
determines whether, notwithstanding the rebuttal of the presumption, the
nonprincipal violent offender should be required to enroll in the VOD and have all
VOD duties for that offense. Id. If the offender fails to rebut the presumption or the
trial court determines during the second phase that the nonprincipal violent
offender should nevertheless be required to enroll in the VOD, the offender must
enroll in the VOD and that all VOD duties apply. R.C. 2903.42(A)(4)(a)-(b).
Where a violent offender is sentenced after the law’s effective date,
the sentencing court is required to inform the offender before sentencing of the
presumption that the offender is subject to VOD enrollment requirements, the
offender’s right to file a motion to rebut the presumption, the procedure and criteria
for rebutting the presumption, the effect of a rebuttal and the post-rebuttal hearing
procedures and possible outcome. R.C. 2903.42(A)(1)(a). Where an offender was
incarcerated for a violent offense at the time Sierah’s Law went into effect, the
“official in charge” of the institution (or his or her designee) must provide this notice
to the violent offender in writing, a reasonable period of time before the offender is
released from the confinement. R.C. 2903.42(A)(1)(b). Each violent offender who
is subject to VOD enrollment requirements is also entitled to notice of the offender’s
duty to enroll in the VOD, of all VOD duties that apply and that those duties extend
for ten years. Where an offender was incarcerated for a violent offense at the time
Sierah’s Law went into effect, the “official in charge” of the institution (or his or her
designee) is required to provide this notice to the offender before the offender is
released from confinement. R.C. 2903.42(B)-(C).
Brown’ Motion to Vacate VOD Enrollment Requirements
On March 20, 2019, when Sierah’s Law went into effect, Brown was
serving the prison term for his voluntary manslaughter conviction. He was granted
judicial release on April 15, 2020.
On July 29, 2020, Brown filed a “motion to vacate violent offender
database (VOD) registration.” Brown argued that, as applied to him — “whose
offense conduct and sentence preceded the enactment of the VOD legislation” — the
VOD enrollment requirements were unconstitutionally retroactive, constituted
“multiple punishment” in violation of the Double Jeopardy Clauses of the Fifth
Amendment to the United States Constitution and Article I, Section 10 of the Ohio
Constitution and “constitute[d] legislative interference with his judicially-imposed
final judgment of conviction” in violation of the separation-of-powers doctrine.
Brown maintained that his motion to vacate was timely,
notwithstanding that it was filed after his release from prison, because he did not
“receive written notice of the right to challenge the VOD registration” at a time
“reasonably in advance of the termination of his imprisonment.” Brown claimed
that he was not provided any written notice related to VOD enrollment until he
received his final discharge papers at the prison.
The state opposed the motion. The state disputed Brown’s claim that
he was not timely provided the written notice required under R.C. 2903.42(A)(1)(a).
In the state’s opposition brief, the assistant prosecuting attorney asserted that it was
his “understanding” that VOD notices are “posted at each institution, in common
areas and the law libraries,” and that “[n]otices are also provided through an
inmate’s JPAY account.” The assistant prosecuting attorney further asserted that he
“believed” that “similar procedures were followed” to notify Brown of his “[VOD]
obligations and opportunity to challenge those requirements.”
The state also argued that Brown’s motion should be denied because
application of the VOD enrollment requirements to Brown was constitutional. The
state asserted that the VOD enrollment requirements (1) were remedial rather than
substantive and, therefore, could be applied retroactively, (2) were not “criminal
punishments” in violation of double jeopardy, (3) were entitled to a “strong
presumption of constitutionality” and (4) did not “intru[de] upon the courts’
inherent powers.”
On September 10, 2020, the trial court granted Brown’s motion. The
trial court did not state the basis upon which it granted the motion.
The state appealed, raising the following single assignment of error
for review:
The trial court erred in granting defendant’s motion to vacate his
violent offender database registration.
On May 6, 2021, this court granted the parties’ joint motion to stay
this appeal, pending the Ohio Supreme Court’s decisions in State v. Hubbard, Ohio
Supreme Court Nos. 2020-0544 and 2020-0625, and State v. Jarvis, Ohio Supreme
Court No. 2020-0549. On October 21, 2021, the Ohio Supreme Court issued its
decisions in State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, and State v.
Jarvis, Slip Opinion No. 2021-Ohio-3712, and the stay was lifted.
Law and Analysis
Timeliness of Brown’s Motion
The state first argues that the trial court erred in granting Brown’s
motion to vacate his VOD enrollment requirements because his motion was
untimely. The state asserts that, pursuant to R.C. 2903.42(A)(2)(b), Brown was
required to file his motion before he was released from prison and that his failure to
file such a motion before his release “triggers the registration requirement pursuant
to R.C. 2903.42(A)(3).” The state further contends that Brown’s assertion in his
motion — “unsupported by affidavit, transcript, or any other evidence” — that he did
not receive the VOD notice required under R.C. 2903.42(A)(1)(b) until he received
his final discharge papers was not sufficient for the trial court to grant Brown’s
untimely motion.3
Brown responds that the trial court was entitled, in the “exercise its
discretion,” to “hear [his] constitutional challenges on their merits” because (1) his
counsel owed a duty of “candor toward the tribunal” in asserting, “in an official
paper filed with the trial court,” that Brown did not receive any VOD notice before
3 On appeal, the state does not dispute Brown’s claim that he did not receive the
VOD notice required under R.C. 2903.42(A)(1)(b) until he received his final discharge
papers. Rather, the state contends that Brown was required to produce evidence of that
fact or that the trial court was required to hold a hearing to decide the issue before the
trial court could consider Brown’s motion.
he received his final discharge papers, (2) it was the state, not Brown, “who first
failed to satisfy a requirement of the statute” and (3) R.C. 2903.42(A)(2)(b) does not
apply to Brown’s motion.
R.C. 2903.42(A)(2)(b), on which the state relies for its untimeliness
argument, applies to motions filed by an offender “who wishes to rebut the
presumption” that he or she is subject to VOD enrollment requirements by
“assert[ing] that the offender was not the principal offender” in the commission of
the offense at issue. Brown, however, does not dispute that he was the “principal
offender” with respect to his conviction for voluntary manslaughter. In his “motion
to vacate violent offender database registration,” Brown was not seeking to rebut the
presumption that he was the principal offender; rather, he was challenging the
constitutionality of Sierah’s Law — a law that imposed additional requirements on
him based on his conviction for voluntary manslaughter years after he had been
sentenced for that offense. Accordingly, R.C. 2903.42(A)(2)(b), by its terms, does
not apply to Brown’s motion.
Brown filed his motion approximately three months after he received
notice that he would be subject to VOD enrollment requirements. Based on the
record before us, the state has not shown that the trial court abused its discretion or
otherwise erred in considering Brown’s motion.4
4 Brown argued only that the state’s failure to timely provide the notice required
under R.C. 2903.42(A)(2)(b) excused his failure to file his motion before he was released
from prison. He does not contend that the state’s failure to provide timely notice under
R.C. 2903.42(A)(2)(b) negated his duty to comply with VOD enrollment requirements.
Constitutionality of Sierah’s Law
The state next argues that the trial court erred in granting Brown’s
motion to vacate his VOD enrollment requirements because the VOD enrollment
provisions are mandatory and constitutional. Brown responds that the trial court
properly granted his motion because retroactive application of the VOD enrollment
requirements (1) violates Ohio’s Retroactivity Clause in Article II, Section 28 of the
Ohio Constitution, (2) constitutes “multiple punishment” in violation of the
prohibition against double jeopardy in Fifth Amendment of the United States
Constitution and Article I, Section 10 of the Ohio Constitution and (3) violates the
separation-of-powers doctrine.
Whether a statute is unconstitutional is a question of law subject to
de novo review. Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136
N.E.3d 466, ¶ 15, citing Crutchfield Corp. v. Testa, 151 Ohio St.3d 278, 2016-Ohio-
7760, 88 N.E.3d 900, ¶ 16; State v. Beard, 8th Dist. Cuyahoga No. 109630, 2021-
Ohio-2512, ¶ 28. “[S]tatutes enjoy a strong presumption of constitutionality.” State
v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 8; see also State
ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147, 128 N.E.2d 59 (1955) (“A
regularly enacted statute of Ohio is presumed to be constitutional and is therefore
entitled to the benefit of every presumption in favor of its constitutionality.”). Thus,
“if at all possible, statutes must be construed in conformity with the Ohio and the
United States Constitutions.” State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d
552 (1991).
For the presumption of constitutionality to be overcome, there must
be “a clear conflict between the legislation in question and some particular provision
or provisions of the Constitution.” Xenia v. Schmidt, 101 Ohio St. 437, 130 N.E. 24(1920), paragraph two of the syllabus. A court may declare a statute
unconstitutional only if it ‘“appear[s] beyond a reasonable doubt that the legislation
and constitutional provisions are clearly incompatible.’” State v. Cook, 83 Ohio
St.3d 404, 409, 700 N.E.2d 570 (1998), quoting Dickman at paragraph one of the
syllabus. The party challenging the constitutionality of a statute bears the burden of
proving the statute is unconstitutional beyond a reasonable doubt. Collier at 269,
citing State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991); Hoover at
¶ 8 (“A statute will be upheld unless the challenger can meet the burden of
establishing beyond a reasonable doubt that the statute is unconstitutional.”); see
also Beard at ¶ 29.
Retroactive Application of Sierah’s Law
Brown contends that because the VOD’s enrollment requirements
“create additional burdens that did not exist at the time of [his] offense,” they are
punitive and violate Ohio’s Retroactivity Clause.
Article II, Section 28 of the Ohio Constitution states that “[t]he
general assembly shall have no power to pass retroactive laws.” Despite this
prohibition against “retroactive laws,” ‘“retroactivity itself is not always forbidden
by Ohio law.”’ State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534,
¶ 31, quoting Bielat v. Bielat, 87 Ohio St.3d 350, 353, 721 N.E.2d 28 (2000). “Ohio
courts have long recognized that there is a crucial distinction between statutes that
merely apply retroactively * * * and those that do so in a manner that offends our
Constitution.” Bielat at 353.
In State v. Hubbard, Slip Opinion No. 2021-Ohio-3710, and State v.
Jarvis, Slip Opinion No. 2021-Ohio-3712, the Ohio Supreme Court recently
addressed the retroactive application of Sierah’s Law, resolving a certified conflict
between the Fifth and Twelfth Districts. In 4-3 decisions, with the Chief Justice
concurring with the lead opinions in judgment only, the Ohio Supreme Court held
that the application of Sierah’s Law to conduct that occurred prior to its effective
date does not violate Ohio’s Retroactivity Clause. Hubbard at ¶ 5, 45; Jarvis at ¶ 14
(“adher[ing]” to the “determination in Hubbard that the application of Sierah’s Law
to violent offenders who committed their offenses prior to its effective date does not
violate the Retroactivity Clause of Article II, Section 28 of the Ohio Constitution”).5
5 Applying the two-part test set forth in State v. White, 132 Ohio St.3d 344, 2012-
Ohio-2583, 972 N.E.2d 534, ¶ 27, 32, 34, and State v. Williams, 129 Ohio St.3d 344, 2011-
Ohio-3374, 952 N.E.2d 1108, ¶ 8-9, the lead opinion in Hubbard determined that Sierah’s
Law was not unconstitutionally retroactive because (1) the General Assembly had
expressly made Sierah’s Law retroactive and (2) “Sierah’s Law does not impair a vested,
substantial right or impose new burdens, duties, obligations, or liabilities as to a past
transaction” and “does not retroactively increase the punishment for an offense
committed prior to its enactment.” Hubbard at ¶ 2, 4-5, 14, 17, 29-30, 43, 45. The lead
opinion likened the burdens imposed by Sierah’s Law to those imposed under Megan’s
Law and amendments to Megan’s Law, which were found to be remedial, rather than
punitive, and upheld as constitutional in State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d
570 (1998), and State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110.
Hubbard at ¶ 4, 25-29.
The dissent maintained that the prohibition against “retroactive laws” in the Ohio
Constitution includes the prohibition against ex post facto laws — “laws that either
expressly or effectively increase the punishment for a person’s past criminal conduct” —
and that the court should, therefore, conduct a “full ex post facto analysis,” applying the
In State v. Beard, 8th Dist. Cuyahoga No. 109630, 2021-Ohio-2512,
decided prior to the Ohio Supreme Court’s decisions in Hubbard and Jarvis, this
court rejected a similar constitutional challenge to Sierah’s Law based on Ohio’s
Retroactivity Clause. The court found that the VOD duties were “less onerous” than
those applicable to sex offenders under the Adam Walsh Act and that the VOD was
similar to the arson offender registry, “which has been constitutionally upheld as a
remedial statute.” Beard at ¶ 43-46, 49, citing State v. Caldwell, 2014-Ohio-3566,
18 N.E.3d 467 (1st Dist.), and State v. Reed, 2014-Ohio-5463, 25 N.E.3d 480 (11th
Dist.). The court concluded that “the registration requirements under Sierah’s Law
are not so burdensome as to amount to a form of punishment that may not be
imposed retroactively” and that retroactive application of those requirements to an
offender who had committed a violent offense prior to the effective date of the VOD
statutes was, therefore, constitutional. Beard at ¶ 43, 49; see also State v. Baber, 1st
Dist. Hamilton No. C-190338, 2021-Ohio-1506, ¶ 48; State v. Rike, 1st Dist.
Hamilton No. C-190401, 2020-Ohio-4690, ¶ 62; State v. Garst, 2d Dist. Clark No.
2020-CA-51, 2021-Ohio-1516, ¶ 23; State v. Williams, 2d Dist. Montgomery No.
28648, 2021-Ohio-1340, ¶ 144; State v. Misch, 2021-Ohio-756, 169 N.E.3d 46, ¶ 14
(6th Dist.); State v. Lamb, 6th Dist. Lucas No. L-19-1177, 2021-Ohio-87, ¶ 58; State
v. Morgan, 2020-Ohio-3955, 156 N.E.3d 989, ¶ 35 (9th Dist.).
United States Supreme Court’s “intent-effects” test, in determining whether Sierah’s Law
is unconstitutionally retroactive. Hubbard at ¶ 47-49 (Stewart, J., dissenting). The
dissent further maintained that under an “intent-effects” analysis, Sierah’s Law is
punitive in effect and cannot be constitutionally applied retroactively. Id. at ¶ 108.
In light of these decisions, we find that the application of the VOD
enrollment requirements to Brown, based on his 2016 conviction for voluntary
manslaughter, does not violate Ohio’s Retroactivity Clause.
Double Jeopardy
Brown also claims that subjecting him to VOD enrollment
requirements based on his 2016 conviction for voluntary manslaughter — after he
had already served his “original sentence” — constitutes “multiple punishments” in
violation of the prohibition against double jeopardy in the Fifth Amendment of the
United States Constitution and Article I, Section 10 of the Ohio Constitution.
The Fifth Amendment’s Double Jeopardy Clause states that no
person shall “be subject for the same offence to be twice put in jeopardy of life or
limb.” Article I, Section 10 of the Ohio Constitution states that “[n]o person shall be
twice put in jeopardy for the same offense.” The protections afforded by the Double
Jeopardy Clauses of the Ohio and United States Constitutions are “coextensive,”
State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 15, and
‘“protect[] persons from (1) “a second prosecution for the same offense after
acquittal,” (2) “a second prosecution for the same offense after conviction,” and (3)
“multiple punishments for the same offense.”’” State v. Christian, 159 Ohio St.3d
510, 2020-Ohio-828, 152 N.E.3d 216, ¶ 21, quoting State v. Roberts, 119 Ohio St.3d
294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 11, quoting North Carolina v. Pearce, 395
U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds,
Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also
State v. Williams, 88 Ohio St.3d 513, 528, 728 N.E.2d 342 (2000) (“Although the
Double Jeopardy Clause was commonly understood to prevent a second prosecution
for the same offense, the United States Supreme Court has applied the clause to
prevent a state from punishing twice, or from attempting a second time to criminally
punish for the same offense.”).
A “threshold question” when analyzing an alleged double jeopardy
violation based on multiple punishments is whether the government’s conduct
involves criminal punishment. Williams at 528, citing Hudson v. United States, 522
U.S. 93, 101, 118 S. Ct. 488, 139 L.Ed.2d 450 (1997). This court previously held in
Beard, 2021-Ohio-2512, that the VOD enrollment requirements are not a form of
“punishment,” but rather, are remedial, collateral consequences of an offender’s
criminal act:
“[C]lassification as a violent offender and enrollment into the violent
offender database ‘is a collateral consequence of the offender’s criminal
acts rather than a form of punishment per se.’” State v. Hubbard,
2020-Ohio-856, 146 N.E.3d 593, ¶ 32 (12th Dist.), quoting Ferguson,
120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, at ¶ 34.
Beard at ¶ 42, 49. Any “punishment” under Sierah’s Law flows from an offender’s
failure to comply with that law, resulting in a new offense, not from the offender’s
commission of the violent offense giving rise to the offender’s VOD duties. Beard at
¶ 42 (“A violent offender will only be subjected to punishment under Sierah’s Law if
he or she fails to enroll in the database, re-enroll in the database, or notify the sheriff
of a change of address.”); R.C. 2903.43(I)(2). Accordingly, the VOD enrollment
requirements are not a second “punishment” and do not violate the Double
Jeopardy Clauses of the Fifth Amendment of the United States Constitution or
Article I, Section 10 of the Ohio Constitution. See Williams at 528 (concluding that
“[b]ecause Cook[, 83 Ohio St.3d 404, 700 N.E.2d 570,] held that R.C. Chapter 2950
was neither ‘criminal,’ nor a statute that inflicts punishment,” it necessarily did not
violate the Double Jeopardy Clauses of the United States and Ohio Constitutions).
Separation of Powers
Finally, Brown asserts that Sierah’s Law is unconstitutional because
it violates the separation-of-powers doctrine.
Separation of powers “represents the constitutional diffusion of
power within our tripartite government.” Norwood v. Horney, 110 Ohio St.3d 353,
2006-Ohio-3799, 853 N.E.2d 1115, ¶ 114. Although the Ohio Constitution does not
contain explicit language establishing the separation of powers, the doctrine is
“implicitly embedded in the entire framework of those sections of the Ohio
Constitution that define the substance and scope of powers granted to the three
branches of state government.” S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159,
503 N.E.2d 136 (1986); see also State v. Sterling, 113 Ohio St.3d 255, 2007-Ohio-
1790, 864 N.E.2d 630, ¶ 22.
The “essential principle” underlying the separation of powers is that
“powers properly belonging to one of the departments ought not to be directly and
completely administered by either of the other departments, and further that none
of them ought to possess directly or indirectly an overruling influence over the
others.” State ex rel. Bryant v. Akron Metro. Park Dist. of Summit Cty., 120 Ohio
St. 464, 473, 166 N.E. 407 (1929). “But the doctrine also recognizes that our
government is composed of equal branches that must work collectively toward a
common cause. And in doing so, the Constitution permits each branch to have some
influence over the other branches in the development of the law.” State v. Bodyke,
126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 48 (O’Connor, J., lead
opinion).
As the Ohio Supreme Court explained further in State v. Thompson,
92 Ohio St.3d 584, 586, 752 N.E.2d 276 (2001):
The separation-of-powers doctrine implicitly arises from our
tripartite democratic form of government and recognizes that the
executive, legislative, and judicial branches of our government have
their own unique powers and duties that are separate and apart from
the others. * * * The purpose of the separation-of-powers doctrine is to
create a system of checks and balances so that each branch maintains
its integrity and independence. * * *
Under our Constitution, the General Assembly is vested with the
power to make laws. Section 1, Article II, Ohio Constitution. * * * The
Ohio Constitution prevents the General Assembly from exercising “any
judicial power, not herein expressly conferred.” Section 32, Article II,
Ohio Constitution.
Conversely, courts “possess all powers necessary to secure and
safeguard the free and untrammeled exercise of their judicial functions
and cannot be directed, controlled or impeded therein by other
branches of the government.” State ex rel. Johnston v. Taulbee (1981),
66 Ohio St.2d 417, 20 Ohio Op.3d 361, 423 N.E.2d 80, paragraph two
of the syllabus[.] * * * “It is indisputable that it is a judicial function to
hear and determine a controversy between adverse parties, to ascertain
the facts, and, applying the law to the facts, to render a final judgment.”
Fairview v. Giffee (1905), 73 Ohio St. 183, 190, 76 N.E. 865, 867.
Relying solely on the Ohio Supreme Court’s decision in Bodyke, 126
Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, Brown argues that, as applied to
offenders like him who were sentenced before the law’s effective date, Sierah’s Law
violates the separation-of-powers doctrine because it “takes a valid final judgment”
— in which an offender was sentenced to a prison term followed by postrelease
control with no additional postrelease reporting requirements — and “reopens that
judgment retroactively to require the various burdens imposed by the VOD * * *
scheme.”
In Bodyke, the Ohio Supreme Court held that provisions of the Adam
Walsh Act, R.C. 2950.031 and 2950.032, that required the attorney general to
reclassify sex offenders “whose classifications ha[d] already been adjudicated by a
court [under Megan’s Law or its precursor] and made the subject of a final order”
violated the separation-of-powers doctrine. Id. at ¶ 55, 60-61 and paragraphs two
and three of the syllabus.
In that case, Bodyke was sentenced in December 1999 to two years in
prison after pleading no contest to one count of breaking and entering and one count
of sexual battery. Id. at ¶ 29. Applying the version of R.C. 2950.01 that was then in
effect, the trial court adjudicated Bodyke to be a sexually oriented offender, the
lowest level of offender under Megan’s Law. Id. As a sexually oriented offender,
Bodyke was required to register with the county sheriff every year for ten years but
was not subject to community-notification provisions. Id.
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 that divided sex offenders into “tiers”
— Tier I, Tier II, or Tier III sex offenders (or child-victim offenders) — based solely
on the offender’s offense. Offenders who had registered before December 1, 2007
were to be reclassified according to the new statutes. Id. at ¶ 20-22. The
reclassification process was to be administered by the attorney general with no
involvement by any court. Id.
In November 2007 — eight years after Bodyke’s no contest pleas and
nearly five years after he was released from prison — the attorney general, acting
pursuant to the reclassification provisions in the Adam Walsh Act, notified Bodyke
that he would be reclassified. Id. at ¶ 30. Bodyke was reclassified a Tier III offender,
which required him to personally register with the local sheriff every 90 days for the
duration of his life. In addition, Bodyke was subject to community-notification
provisions. Id.
The Ohio Supreme Court held that the reclassification provisions
violated the separation-of-powers doctrine because they (1) “impermissibly
instruct[ed] the executive branch to review past decisions of the judicial branch” and
(2) “interfere[d] with the judicial power by requiring the reopening of final
judgments.” Id. at ¶ 55, 60-61, 67 and paragraphs two and three of the syllabus. The
court severed R.C. 2950.031 and 2950.032 and reinstated the classifications and
registration orders previously imposed. Id. at ¶ 66.
The situation in Bodyke is not the situation here. Sierah’s Law does
not involve the reclassification of offenders who were previously classified by judges.
It does not vest the executive branch with authority to review judicial decisions. It
does not direct another branch of government to alter prior adjudications by the
judiciary or otherwise “interfere” with the judiciary’s exercise of judicial power.
Under Sierah’s Law, no other branch is required to make any factual
or legal determinations or perform any other functions reserved for the judiciary.
Under Sierah’s Law, all persons convicted of certain specified violent offenses on or
after the law’s effective date and all persons serving a term of confinement for such
an offense on the law’s effective date are classified as “violent offenders.” R.C.
2903.41(A). A “violent offender” who was the principal offender in the commission
of the offense is automatically subject to the VOD duties set forth in the VOD
statutes. See R.C. 2903.42(A)(4) (“If a violent offender does not file a motion under
division (A)(2)(a) or (b) of this section, the violent offender shall be required to
enroll in the violent offender database with respect to the offense that classifies the
person a violent offender and shall have all VOD duties with respect to that offense
for ten years after the offender initially enrolls in the database.”). Although not
applicable in this case — given that Brown does not dispute that he was the principal
offender in the commission of the offense at issue — where a violent offender seeks
to rebut the presumption that he or she is required to enroll in the VOD by proving
that he or she was not the principal offender, the sentencing court holds a hearing
on the issue and decides whether the violent offender is required to enroll in the
VOD. See R.C. 2903.42(A)(4).
The VOD duties established under Sierah’s Law are not part of an
offender’s sentence. Nothing in the VOD statutes “reopens,” revises or otherwise
modifies Brown’s final judgment of conviction. Accordingly, Brown has not shown
that Sierah’s Law violates the separation-of-powers doctrine.
Because the VOD enrollment requirements are mandatory for violent
offenders, such as Brown, who are principal offenders and because Brown has not
established beyond a reasonable doubt that Sierah’s Law is unconstitutional, the
trial court erred in granting Brown’s motion to vacate his VOD enrollment
requirements. The state’s assignment of error is sustained.
Judgment reversed.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
LISA B. FORBES, J., CONCUR