State v. Fleming, Unpublished Decision (5-11-1998)

OPINION Defendant-appellant, Lloyd D. Fleming, appeals his classification as a sexual predator pursuant to R.C. 2950.09-(C).

In 1993, appellant pleaded guilty to two counts of gross sexual imposition and was sentenced to concurrent prison terms of two years on each count. In 1994 appellant was granted shock probation. Appellant violated his probation the following year, at which time the court elected to continue probation. On October 11, 1996, the court found that appellant had again violated his probation and reimposed appellant's original sentence.

While appellant was incarcerated, the department of rehabilitation and correction recommended that he be classified as a sexual predator pursuant to R.C. 2950.09(C). The trial court denied appellant's motions to have R.C. Chapter 2950 declared unconstitutional and adjudicated appellant a sexual predator.

Appellant's two assignments of error claim that R.C. Chapter 2950, as applied through R.C. 2950.09, is an impermissible ex post facto law in violation of Section 10, Article I, United States Constitution and violates the prohibition against retroactive laws embodied in Section 28, Article II, Ohio Constitution.

In State v. Lyttle (Dec. 22, 1997), Butler App. No. CA97-03-060, unreported, this court considered similar assignments of error. We concluded that the sexual predator law is not punitive and does not violate the constitutional prohibition against ex post facto laws. Id. at 22. Furthermore, the various provisions in the law are remedial, not substantive, and do not violate the Ohio constitutional proscription against retroactive legislation. Id. at 26.

Accordingly, appellant's assignments of error are overruled on the authority of Lyttle. See, also, State v. Naegele (Jan. 12, 1998), Clermont App. No. CA97-04-043, unreported; State v. Striley (Dec. 29, 1997), Clermont App. No. CA97-05-046, unreported; and State v. Ramsey (Dec. 22, 1997), Clermont App. No. CA97-03-025, unreported.

The trial court's judgment is affirmed.

WALSH, J., concurs.

KOEHLER, J., dubitante.